You are on page 1of 32

Natural Law Theory

Introduction:
The term "natural law" is ambiguous. It refers to a type of theories of

moral, as well as to a type of theories of law. In this outline, natural law will be

considered only as theories of law. That is not to say that theory of law can be

adequately identified and pursued independently of moral and political theory. Nor is it

to deny that there are worthwhile natural law theories much more concerned with

foundation issues in ethics and political theory than with law or legal theory. In the

present outline, “natural law theory” is to be taken as shorthand for natural law theories

just insofar as they bear on law, how they are connected to human rights, changes in

viewpoint from the medieval or classical period to present, how it is closely associated

to natural right and other theories of or about it. This focus has the important incidental

effect that many historically important differences between natural law theorists can be

omitted, differences which pertain more to the foundations of normativity than to the

nature and functions (or “the concept”) of positive law. To speak coherently of “natural

law,” it is necessary to refer to the objective content of such a law. In its fundamental

determinations, this law is immutable. However, the awareness of its historical value, of

the contents which it expresses, and the importance that this law has for individuals,

and for societies, matures with the growth of an ethical consciousness, which can never

stop without causing the stunting of humanity’s spiritual progress. Natural law is not an

invention of Catholicism. Some would suggest this in order to summarily dismiss the

question, avoiding the importance and truth of its origins.

1
History of Natural law theory and Human rights.

Classical and Medieval sources of Natural laws and Human

Rights

Greek thinkers, most especially the Sophists, Plato, and Aristotle, debated the

old Greek dichotomy of phusis and nomos amidst the economic and political

fermentation of fifth-century Athens and in so doing initiated the natural law tradition.

The term ‘phusis’ is a dynamic one. It means ‘nature’ – in the sense of an

inherent character of a being or material reality – but the term also encompasses what a

thing or being will become, its process of blossoming. Diametrically opposed to ‘nature’

in early Greek thought is nomos. Nomos means both ‘law’ and ‘custom,’ and, unlike

nature, is something essentially man-made. Even in the archaic myths of Homer and

Hesiod, men establish their nomoi in opposition to nature and to the ordinances of the

gods. For example, Prometheus steals fire from the gods and Hercules subdues nature

through human ingenuity, in order to establish civilization, the seat of nomos.

The fifth-century relativistic Sophists maintained this accepted dichotomy, but

Plato and Aristotle challenged it by asking whether there were fundamental, universal

ethical principles common to all men. Plato, arguing against the sophists, claimed that

such principles (i.e. laws) do exist and that they have their moorings in nature itself.

Aristotle distilled and developed this notion that such laws are inscribed in nature and

articulated the first systematic theory of “natural law.”

Subsequent proponents of natural law introduced the theory into the Latin

language, through which it was transmitted for over a millennium. Cicero appropriated

2
Greek conceptions of the theory, and, as Augustine and Aquinas would later do,

strengthened it by answering contrary arguments. These thinkers more fully addressed

the question of how there may be a universal natural law when the laws and customs

amongst peoples differ and how it is that men sometimes establish ‘laws’ which are not

truly just. Augustine’s argument was iniusta lex non est lex: an unjust man-made law is

not truly a law but a violation of the natural law to which it should conform. Aquinas

further clarified and systematized the classical theory of natural law, integrating

Aristotle’s teleological view of the world into a more complete metaphysical vision, in

which man’s ultimate end was union with and contemplation of God.

Christian thinkers came to understand natural law not as a product of necessity

or of arbitrary divine will, but as the main instrument by which a benevolent and

omnipotent Lawgiver guided the community of his creatures to happiness. Free will

accounted for the differences in human laws, because, in their understanding of the

world, men could choose whether to conform their actions to the abiding natural law and

cooperate with the Lawgiver’s plan. The idea that God had providentially given all

human beings the natural ability to discern and obey the right rules of action was highly

influential in subsequent Western thought, and played a conspicuous role in the rhetoric

and reasoning of the American revolutionaries.

The Natural Law Theory of Thomas Aquinas

Thomas Aquinas is generally regarded as the West’s pre-eminent theorist of the

natural law, critically inheriting the main traditions of natural law or quasi–natural law

thinking in the ancient world (including the Platonic, and particularly Aristotelian and

3
Stoic traditions) and bringing elements from these traditions into systematic relation in

the framework of a metaphysics of creation and divine providence. His theory sets the

terms of debate for subsequent natural law theorizing.

The fundamentals of Aquinas’s natural law doctrine are contained in the so-

called Treatise on Law in Thomas’s masterwork, the Summa Theologiae, comprising

Questions 90 to 108 in the first part of the second part of the three-part Summa.

Thomists have rightly expressed reservations about the procedure of surgically

extracting the teaching in those Questions (or often the more strictly philosophical

Questions 90 to 97) and representing it as Thomas’s natural law thinking tout court.

Indeed, there is less possibility of distorting Thomas’s theory if one is careful to read the

Treatise on Law in the context of the conceptual architecture of the Summa

Theologiae as a whole.

The Summa is Thomas’s mature theological synthesis, aimed at providing

beginners in theology with a systematic, overall account of both the divine nature, as

knowable by faith-enlightened reason, and the divine plan and work of creating and

redeeming the cosmos and ordaining it to a final transfiguration in glory at the end of

history. Thomas’s method in composing the work, as he states in the work’s Prologue,

is to treat of the whole of revealed theology (sacra doctrina) as briefly and clearly as

possible, but according to a strict order whereby the very contours of the subject matter

of the science dictate the architectonic plan and the sequential treatment of questions

within the work. The first Question of theSumma so treats the nature and scope of

theology itself, and once this is established, the work considers the very existence and

4
nature of God: God first in His own inner and Trinitarian life, and then in His external

activity of giving being to creatures and ordaining them to perfection or full realization for

the manifestation or communication of His own glory.

The Summa and theology itself are all about God. The divine nature is the

subject matter of the science, and the very first principles or premises that serve as

inferential starting points in the systematic inquiry of theology are those items that God

has revealed to us concerning His nature and His plan and purpose in creating the

cosmos. God Himself and subsequently all creation are studied in the light of these

starting points or first principles. In the order of the Summa, the first part of the work

treats the divine nature in itself and then the free creative production of creatures by

God (angels, humans, and all other animate and inanimate beings). The second part

treats the grace-aided attainment of a cognitive-affective union with God by human

activity (which union represents the fullest realization of human nature, as we shall see),

and the third part treats Christ and his Church and sacraments, the necessary means

for man’s union with God.

Law, of its various sorts, has a role to play in humans’ full realization of their

nature by free acts (acts over which they have a certain degree of control and

dominion). What role? To ask this question is to seek to grasp Thomas’s natural law

teaching in the context of his overall metaphysical cosmology. According to Thomas,

human nature, a psychosomatic unity, is perfected or fully realized by harmonious and

habitual excellence in the exercise of its intrinsic capacities and powers (e.g. cognitive,

creative, affective, productive). Highest among these capacities—the capacity with the

5
most potential to enrich and enlarge human nature and so to realize it most

completely—is the human intellect, with its power to come to some understanding of the

nature of whatever exists. Following Aristotle, Thomas teaches that through intellect the

human soul is potentially all things: it ranges over the entire universe of what is, and by

acts of understanding and inferring, it in a certain way brings the entire universe into the

soul. Put another way, in conjunction with the will the intellect expands the soul to

become all that is by a cognitive and affective, but not a physical, union. Again with

Aristotle, Thomas maintains that the highest object of this highest human power, (and

so the appropriate but often hidden or misperceived ultimate and crowning end of all

human excellence-in-activity and striving) is cognitive-affective union with the first

uncaused cause of the totality of things: Deus (in Aquinas’s Latin) or God.

For Thomas, in contradistinction to Aristotle but closer to the teaching of Plato,

this first uncaused cause is not merely the best, most self-sufficient, most fully realized

being in the cosmos, but also the artisan-creator and ruler of the cosmos. This first, self-

existent, and infinite being loves the world into existence, according to the model of His

own eternal creative ideas, and orders the totality of individual things, notes as it were in

a symphony, to one integrated end or purpose: a cosmic common good.

Created beings without intellect or will (whether animate or inanimate) are willed

into being and directed toward their own perfection in the context of the perfection of the

whole, which perfection they each approach automatically or spontaneously and without

understanding or resistance. Creatures endowed with intellect and will (angels and

humans), however, only fully realize their own potentialities consciously or by uncoerced

6
intelligible decision, and so are able to ratify or to frustrate God’s creative purpose. It is

here that we see the role in the divine plan and in human life for law, as human beings

characteristically understand the term: law, Thomas will have it, is an extrinsic source or

principle of human perfection or full human development. God, he states, “instructs us

by means of His Law.”

Thomas argues outright in the very first article of the first question of the Treatise

on Law, that law (lex) essentially can be seen as an ordinance of reason directing

activity toward some end, goal, or purpose, and the highest end or purpose we have as

humans is our ultimate fulfillment, the full realization of our nature, or “happiness” as is

commonly said in English. Hence all law is meant to sub-serve human happiness. But

law has by common acknowledgement and usage a social function as well: it directs the

activity of some collectivity to a common goal, and it does this authoritatively. So the

true purpose of law is to sub-serve the happiness of all in the community. But law does

not merely recommend or suggest, it binds and commands. Lawmakers in our familiar

experience are thus recognized authority figures within a social community who address

themselves to the reason of the members of that community, commanding them to

shape their actions in certain specified ways. Because law has this essentially directive

function, in order for an ordinance of reason from a recognized authoritative source to

have the status of law, it must also be promulgated, or made public, so that it can

perform its coordinating and directing work. Hence we have Thomas’s famous lapidary

definition of law in the Treatise: it is “an ordinance of reason for the common good,

made by him who has care of the community, and promulgated.”

7
God, the ultimate cause of all being, activity, and development in everything that

is, is nothing if not caring for the community of creation, and as universal creator He has

authority to the highest degree with respect to His intelligent creatures. Is He not the

lawmaker-lawgiver par excellence? He is, Thomas thinks, since God satisfies the

condition for this appellation perfectly. Elaborating on an earlier theological tradition but

making a straightforwardly metaphysical point, Thomas maintains that we have a law of

God’s making that is co-eternal with His own nature. This is the Eternal Law (lex

aeterna) through which the divine intellect creatively designs and directs all creatures to

a common end (the common end of the universe), promulgating in time this eternal

ordinance of His reason by the very act of creating beings and endowing them with

spontaneous natural inclinations to move toward their own perfection in the context of

the universe and its overall and unified perfection.

Created beings without intellect and will observe the eternal law, the eternal

directives in the creative mind of God, spontaneously or automatically and perfectly. In

the case of human beings, this eternal law directs them spontaneously toward their full

and complete good by ordaining their essential nature to acts of understanding and

desire for the goods constitutive of human perfection or fulfillment. But human beings

have each their own intellect and will, so their spontaneous inclination and subsequent

movement toward that full and complete good is brought about (or not, since it can be

resisted or rejected) by conscious ratification and cooperation, that is, knowingly and

willingly. Thus, in the human world we have the Eternal Law as received and

understood from the inside, as it were, and observed only conditionally: when humans

correctly understand, desire, and act for the goods of human nature (food, drink,

8
clothing, shelter, creative activity, knowledge, friendship, etc.) they are freely enacting

observance to the Eternal Law. They are not making a law for themselves, but

are discovering it and appropriating it for themselves. They are discovering and

potentially ratifying in action the divine design-plan for their nature, to which non-rational

creatures witness in whatever they do and undergo, although they are neither cognizant

of this plan as law, nor capable of knowingly instantiating or resisting it.

This for Thomas finally is the natural law (lex naturalis): a sharing from within (or

participation) of the Eternal Law, but not, Thomas insists, something otherwise different

from that first and highest law in the mind of God: “the natural law is nothing else than

the rational creature’s participation of the eternal law.” This participation is available to

all humans independently of any reception on their part of divine supernatural

revelation: the natural law is observed whenever humans both engage in correct

practical reasoning about what is good and best for them overall in any given

situationand when they act in accord with that rational determination.

The natural law, according to Aquinas, has certain basic and self-evident

precepts or dictates, dictates knowable to any human with a properly functioning

intellect and a modicum of experience of the world. Paraphrasing Thomas, first and

fundamental, is the precept that, “anything good [i.e. that which perfects human nature]

is to be pursued [is the appropriate object of human activity], and the opposite of this

good, evil, is to be avoided in all human acts.” Other basic precepts, but with specific

content, would include those such as: “bodily health is a good to be pursued and bodily

9
harm avoided,” or “knowledge is a good to be pursued and ignorance and falsehood

avoided,” or “friendship is a good to be pursued and those things opposed to it avoided.”

In each case, human reason grasps that some object is perfective of human

nature and so directs that nature toward it by an at least tacit precept or action-guide,

while directing it away from that good’s contrary. The basic precepts of the natural law

command human nature to seek obvious human goods; when the status of some

presumptive object of human action as a good is less evident, investigation is required

to determine its status. Not all, however, are equally fit for this task of discernment

about what is good for human nature in general and good for this particular human

being as such.

This natural law instantiating practical reasoning about what is best for humans

by nature (and therefore about what is ordained by God) spontaneously and

appropriately results, as Thomas observes, in the construction of man-made laws.

Although God’s design-plan for the whole of humanity (for all human acts throughout

cosmic history, that is, and for their orchestration toward the common good of the

cosmos) is perfectly complete and specified in all detail in the divine mind, that portion

of the Eternal Law which concerns humankind in its nature and in its divinely foreknown

history is not fully graspable by the human intellect. Because of this inherent limitation of

the human mind, humans must make their own laws to supplement that portion of the

Eternal Law that they do spontaneously and readily grasp (which portion includes the

rudimentary parts of the natural law), to direct themselves in community to their

fulfillment. They do this correctly either by deriving specific norms from the most basic

10
and general principles or precepts of the natural law, or when they give specific shape

to one of these basic and discovered dictates or principles appropriate for a particular

time and place.

The former derivation of human laws from the natural law Thomas refers to as

“the law of nations” (ius gentium); the latter he refers to as civil law (lex civilis): both

forms of law are, inasmuch as they are legitimately derived from the dictates of the

natural law, normative. That is, they comprise rational requirements for right human

action on Aquinas’s view. Any human law, though, that directly contravenes a dictate of

the natural law ipso facto fails as a law and has the status of an irrational command

instead. Such commands ought only be observed for prudential reasons, such as to

avoid some greater harm that might arise in the social order from the failure to observe

what is really only a pseudo-law.

Natural law, consent, and equality

The 14th through the 16th centuries were a period of transition from the Middle

Ages to modernity. There were new developments in the history of natural law thinking,

at least two of them of major importance for American constitutionalism. First, in this

period writers on natural law gave greater emphasis to the rights of the individual, and in

particular to the rights to property and freedom. Second, natural law doctrines of original

freedom and equality were used to derive the legitimacy of law and government from

the consent of the people, sometimes with the implicit or explicit threat of the withdrawal

of that consent in cases of abuse of power.

11
Late medieval and early modern theories that derived legitimacy from popular consent

were associated with the emergence of representative institutions that challenged the

more extreme exponents of divine right absolutism. Part of the argument was historical,

basing the king’s authority on a supposed original transfer of authority from the people

to the ruler. That transfer was itself justified by natural-law arguments supporting the

original freedom and equality of all men, arguments that constituted an alternative to

theories of hierarchical rule based on superior wisdom, virtue, or designation by God.

God remained the ultimate source of authority, but the ruler received that authority

through the consent of the people. At first popular consent was expressed by the

nobles, bishops, or corporate groups in the Church and the state. In succeeding

centuries, however, consent became more individualized until it became the decision of

the numerical majority, and the collective rights of the people became the natural rights

of the individual.

Early Modern Liberal Roots of Natural Law

While philosophers from Aristotle to Aquinas had generally accepted the premise

that man is inherently a social being whose natural state is political, Thomas Hobbes

proposed quite a different view. He posited that the human state of nature is solitary and

characterized by constant, chaotic warfare in which each man is pitted against every

other in a struggle for survival. Though his intellectual successors would not have so

bleak a view of the state of nature, the notion of individuality characterized the Early

Modern understanding of human nature.

12
Hobbes also rejected the idea from Aristotle that man’s nature is teleological (i.e.

ordered toward a particular end or purpose). Whereas Aquinas had argued that the

human person is directed to one ultimate end, namely God, Hobbes conceived of man

as being in ceaseless motion with no particular end, whether natural or supernatural.

Consequently, a government could not exist for the sake of instructing man in virtue.

Instead, for thinkers such as Hobbes and John Locke, government had the exclusive

task of protecting man’s natural rights, foremost among these being the right to self-

preservation.

In lieu of the classical notions of human nature informing the purposes of

government, Hobbes and Locke developed theories of social contract, proposing that

men form society (and consequently government) in order to obtain the security,

prosperity, or conveniences impossible in the state of nature. While most natural-rights

thinkers agreed that rational social order should be understood first as a contract to

secure natural rights, they differed as to how these rights should be enumerated,

whether they were truly inviolable, what political structures were needed to protect

them, and how far these rights of the individual were tempered by duties towards

others.

While Montesquieu emerged as a moderate thinker within the natural-rights

tradition, the English Whigs became a dominant, radical force. They argued most

vehemently that the authority of the government is constituted by the consent of the

governed, precisely because governments find their origin in the social contract.

Following from this premise, they advocated constitutional limits on government and

13
strict delineation of powers to insure the protection of individual rights. These were the

ideas that were to influence and inspire the American revolutionaries and the Founders

of a new Republic.

THOMAS HOBBES: FROM CLASSICAL NATURAL LAW to


MODERN NATURAL RIGHTS

For many centuries, natural law was recognized as a type of higher law that

spelled out universal truths for the moral ordering of society based on a rational

understanding of human nature. As a higher moral law, it gave citizens a standard for

determining if the written laws and customs of their nation or any other nation were just

or unjust, right or wrong, humane or inhumane. Today, natural law is not discussed very

much, at least not explicitly. When mentioned at all, it is usually rejected as dangerous

because it undermines existing laws or as intolerant because it is contrary to

“multiculturalism,” which requires the non-judgmental acceptance of other cultures.

This negative view of natural law can be traced to Thomas Hobbes (1588–1679),

whose writings are largely devoted to showing the anarchy and civil wars caused by

appeals to natural and divine laws above the will of the sovereign. Hobbes rejected

traditional higher law doctrines and encouraged people to accept the established laws

and customs of their nations, even if they seemed oppressive, for the sake of civil peace

and security. His critique has been a leading cause of the demise of natural law and the

acceptance of positive law as the only reliable guide for political authority.

One may be equally surprised to learn, however, that many people today

embrace a different (and seemingly contradictory) view of natural law, and this too is

14
traceable to Thomas Hobbes. For example, when conscientious people are confronted

with violations of human rights—as in religious theocracies that violate women’s rights

or in countries that allow sweatshops to trample on worker’s rights—they feel compelled

to protest the injustice of those practices and to change them for the better. The

protesters usually deny that they are following natural law, but they obviously are

asserting a belief in universal moral truths that are grounded in human nature—in this

case, the natural equality of human beings that underlies human rights. This

understanding of higher law originates with Hobbes because he was largely responsible

for transforming classical natural law into modern natural rights, thereby beginning the

“human rights revolution” in thinking on natural law. How is it possible for Hobbes and

his followers to embrace seemingly contradictory views of natural law, rejecting one

form as intolerant, self-righteous, and anarchical, while embracing another form as the

universal ideal of social justice? Let us turn to Hobbes for an answer to this puzzle, and,

in so doing, uncover the sources of our modern conceptions of law, rights, and justice.

The key to solving this puzzle is Hobbes’s famous statement about the desire for

power in Leviathan: “So that in the first place, I put for a general inclination of all

mankind, a perpetual and restless desire for power after power, that ceaseth only in

death.” What Hobbes means by this sweeping claim is that human nature consists of

ceaseless motion without a natural end that constitutes happiness or felicity; hence,

Hobbes says, “there is no Finis Ultimus (utmost aim) nor Summum Bonum (greatest

good) as is spoken of in the books of the old moral philosophers. . . . Felicity is a

continual progress of the desire, from one object to another.” Hobbes’s denial of the

greatest good is the crucial point of disagreement with “the old moral

15
philosophers,” Aristotle and Thomas Aquinas, who expounded the classical natural law

doctrine.

According to the classical view, man is a rational and social animal who has a

natural inclination to his proper end, happiness, which can be attained by the virtues or

the perfections of mind and character. Classical natural law was therefore

“teleological”: directed to the natural end of human beings and to the good life of virtue

in a just political community. Hobbes rejects the teleological view of human nature as a

false and dangerous illusion. Instead, he sees human nature as the restless striving for

power after power that has no end and therefore no happiness or perfection. The

rejection of end-directed motion underlies Hobbes’s revolution in thinking from classical

natural law, and its perfectionist principle of virtue, to modern natural rights, and its

minimalist principle of self-preservation.

One argument that Hobbes uses to justify the rejection of natural teleology is

metaphysical: the theory that only “bodies in motion” are real and that man is a complex

machine moved by mechanical responses to images of external objects. This view is

developed in Leviathan, Part I, which gives the materialist account of man as a creature

of appetites and aversions: seeking pleasure, avoiding pain, and desiring power after

power. The materialist account supports the view that no natural end for man really

exists, only the ceaseless motion of a complex machine. The materialist account also

strengthens the case against the Aristotelian-Thomistic view of man as a rational and

social animal naturally suited by language and friendship to live in a political community.

Hobbes’s model shows that human beings are selfish, competitive, and anti-social, and

16
that they are rational only insofar as reason serves the selfish passions. The logical

conclusion is Hobbes’s “state of nature” teaching, which describes the anarchical

condition of individuals without an artificial social contract and a coercive sovereign to

hold them together.

The mechanical model of man, however, is not sufficient to refute classical

natural law. Hobbes develops a second argument based on moral experience, showing

that human beings are motivated not only by pleasure and power but also by vanity—a

false estimate of one’s superiority to others. In historical writings, Hobbes shows how

the passion of vanity has undermined traditional political authority where kings have

relied on higher law to gain obedience from the people. The defect of this arrangement

is that traditional higher law doctrines are easily exploited by vain and ambitious men

who claim superiority to the sovereign because of privileged knowledge of divine,

natural, and common law. Hobbes’s account of the English Civil War (1642–60)

in Behemoth illustrates the problem: King Charles I was overthrown by Puritan

clergymen, democratic Parliamentarians, and lawyers of the common law who sought

recognition for their superior knowledge of higher law, yet who could not agree among

themselves about whose doctrine was right, producing sectarian wars that reduced

English society to the anarchic state of nature. From this frightening analysis, however,

Hobbes draws a hopeful lesson: if higher laws are not equated with intangible goods

like virtue, wisdom, and salvation, then the ills of civilization can be avoided and

mankind can enjoy enduring civil peace.

17
Herein lies the crucial move in Hobbes’s shift from classical natural law to

modern natural rights: the idea of the greatest good is a dangerous illusion because it is

vain, unreal, and never produces agreement; but the minimal good of avoiding death is

the strongest, most real, and most universal passion: “for every man is desirous of what

is good for him, and shuns what is evil, but chiefly the chiefest of natural evils, which is

death.” In other words, natural law is false and dangerous when it encourages illusory

notions of superiority and implies duties to perfect citizens’ characters or to save their

souls; but natural law is the solution to civilization’s ills when it is defined as the natural

equality of all human beings and the dictate of right reason to avoid death or to preserve

one’s life. The implication is that the root of justice is “not a duty but a right . . . the

fundamental and inalienable right of self-preservation.”

This shift underlies Hobbes’s famous re-definition of natural law: “A Law of

Nature is a precept or general rule, found out by reason, by which a man is forbidden to

do that which is destructive of his life or which takes away the means of preserving the

same. . . . For though they that speak of this subject used to confound jus and lex (right

and law), yet they ought to be distinguished, because Right consists in liberty to do or

forbear, whereas Law binds to one of them; so that law and right differ as much as

obligation and liberty.” From the new definition of natural law as a right or liberty to

preserve one’s self, Hobbes deduces nineteen commands, such as seek peace; lay

down the right to all things and transfer power to a sovereign; obey the social contract;

promote the attitudes conducive to civil peace (such as gratitude, forgiveness,

avoidance of pride, treating people equally, and acceptance of arbitration and impartial

judges). Hobbes acknowledges that these moral attitudes are social virtues, but they

18
are aimed at the minimal good of civil peace rather than the perfection of mind and

character; they also make obedience to positive law the primary duty of natural law,

removing any pretext for rebellion in the name of higher law.

The influence of Hobbes’s new doctrine has been profound but largely indirect

because of the notorious reputation he acquired as an atheist materialist and advocate

for absolute monarchy over constitutional government. While Hobbes’s name was

“justly decried,” he convinced many people in the seventeenth and eighteenth centuries

to change their views of the proper ends of government—from promoting the higher

goods of virtue and salvation to protecting the limited goods of life, personal liberty, and

property—inaugurating the natural rights principles of modern liberalism that became

the basis of an enlightened middle-class materialism or “bourgeois” view of

morality. Hobbes never took the step of later liberal thinkers of advocating constitutional

limits on state power as the best means for securing life, liberty, and property because

he was convinced that fear of the sovereign’s absolute and arbitrary power was the only

way to keep people in line. Yet, once the shift to limiting the scope of government to the

security of rights was widely accepted, a movement away from the absolute monarchy

favored by Hobbes to the constitutionally limited government favored by Locke,

Hume, Montesquieu, and the Federalist was the logical outcome of the Hobbesian

revolution from classical natural law to modern natural rights.

The New Natural Law Theory


The New Natural Law (NNL) theory is the name given a particular revival and

revision of Thomistic Natural Law theory. The distinctive, and often disputed, areas of

19
contribution by the New Natural Lawyers include the following five, which will be the

focus of the remainder of this entry:

1. The foundations of moral thought and practical reason;

2. The casuistry of the New Natural Lawyers;

3. The nature of human action;

4. The nature of political authority and the political common good; and

5. The ultimate end of human beings.

1. Foundations of moral thought and practical reason

In his commentary on St. Thomas’s account of the first principles of practical

reason, Germain Grisez articulated a number of theses that have been developed and

augmented by the New Natural Lawyers in subsequent decades. The most important

are the following:

First, the New Natural Law view holds that practical reason, that is, reason

oriented towards action, grasps as self-evidently desirable a number of basic goods.

These goods, which are described as constitutive aspects of genuine human flourishing,

include life and health; knowledge and aesthetic experience; skilled work and play;

friendship; marriage; harmony with God, and harmony among a person’s judgments,

choices, feelings, and behavior. As grasped by practical reason, the basic goods give

foundational reasons for action to human agents. Moreover, they are recognized as

good for all human agents; it is equally intelligible to act for the sake of the life of

another as for one’s own life.

20
Second, these goods, and most of their instantiations in action, are held to be

incommensurable with one another. That is to say, there is no natural hierarchy of

goodness such that one good may be said to offer all the good of another plus more.

Rather, each of the goods is beneficial to human agents, and hence desirable, in a

unique way; each offers something that the other goods do not. The same is generally

true of particular instantiations of the goods: one way of working, playing, or pursuing

knowledge, for example, may offer benefits that are not weighable by a common

standard of goodness in relation to instantiations of the other goods, or even

instantiations of the same good.

Third, and in consequence of the first two points, the judgments of practical

reason in recognizing the basic goods and directing agents to pursuit of those goods

are not yet moral. Rather, practical reason’s apprehension of and directedness to the

goods is a condition for human actions, all of which, to be genuine actions, must be

oriented to some good. Morality enters in only at the level of deliberation and choice as

regards which goods, or which instantiations of goods, to pursue when faced with

desirable options for choice. The New Natural Lawyers have offered various

formulations of a first principle of morality that captures a reasonable openness to all the

goods across all persons. In Grisez’s most recent work, he argues that human agents

should always make a “contribution to integral communal well-being and flourishing, and

they always can and should avoid intentionally impeding or detracting from integral

communal fulfillment.” This formula replaces an earlier formula which prescribed that

agents must will and act in ways open to “integral human fulfillment.”

2. Casuistry and applied ethics

21
In the 1970s, Grisez, Boyle, and Finnis began to specify the first principle in

terms of a set of “modes of responsibility.” These modes direct agents to certain kinds

of acts, and away from others, by taking into account the ways in which emotions and

non-morally integrated feelings could distort an agent’s openness to the goods, and to

other persons’ fulfillment in the goods. Thus, through hostility towards a good, on the

one hand, or enthusiasm for some good, on the other, agents might be tempted to

damage or destroy an instance of the goods. Or, through arbitrary preference of self, or

those close to one, an agent might unfairly allow damages to be inflicted on another

while pursuing a good himself.

These modes of responsibility can in turn be further specified with respect to particular

kinds of actions. The best known work of the New Natural Lawyers has focused on the

specification of two of the modes mentioned above, both of which forbid intentional

damage or destruction of a basic good, whether because of hostility, or because of

enthusiasm for some good. In a 1970 essay, “Toward a Consistent Natural Law Ethics

of Killing,” Grisez started to work out the consequences of these principles, arguing that

not only homicide, suicide, direct abortion, and euthanasia are always and everywhere

wrong, but also that capital punishment and intentional killing in war are also morally

forbidden. Grisez and his collaborators also argued in support of the Catholic teaching

on the impermissibility of contraception.

The New Natural Law position holds that there are moral absolutes, that is,

norms that specify certain acts as of a sort that are always and everywhere not to be

done. This can be seen in the New Natural Law approach to lies and lying. Following

both Augustine and Aquinas, the New Natural Lawyers hold that it is always wrong to

22
lie. Lies are almost always a violation of justice, are always unloving to one’s

interlocutor, and they always violate the integrity and authenticity of the liar.

In more recent years, the New Natural Lawyers have developed an account of a

specifically sexual morality around two claims: first, that marriage is one of the basic

human goods, distinct from life or friendship; and second, that the human person is a

rational animal, a living organism of the human species. The New Natural Lawyers see

general principles of sexual morality as flowing from these claims.

3. Theory of Action

Many of the particular claims in applied ethics made by the New Natural Lawyers

are supported by considerations concerning the nature of human action, and indeed, an

account of their casuistry is incomplete apart from a consideration of the nature of

action. The New Natural Law’s applied ethics specifies a set of moral norms that direct

practical deliberations and choice in relation to basic goods. Among the norms are

certain moral absolutes that single out types of deliberate behavior that damage or

destroy instances of basic goods. Yet if the formula were not further specified, it would

be unlivable: because the context of choice is that of incompatible options for action, all

of which offer some good not available in the other option(s), all choices involve at least

that damage to goods which results from foregoing the choice of a good. And because

the world is structured according to morally neutral laws of causation, even an act

aimed only at a genuine good can have consequences, in the near or far term, that are

damaging to instances of basic goods. So moral absolutes must be specified in terms of

23
the concept of intention: it is always wrong, not to cause damage, but intentionally to

damage a basic good.

Accordingly, the New Natural Lawyers need an account both of what it means to

intend something, and an account of the circumstances under which it is permissible to

allow, or accept as a side effect, damage to a good that is not intended.

The account of intention can be expressed using the helpful notion of a proposal

for action. In acting, agents seek to bring about some state of affairs in which a good or

goods will be instantiated (agents thus envisage the state of affairs as offering a

benefit). An agent’s proposal for action is her proposal to do such and such in order to

bring about that state of affairs. Included in the proposal is both the state of affairs

sought (the end) and the instrumentalities by which she will bring about that end (the

means). “Intention” for the New Natural Lawyers encompasses both the end (including

the good-related benefit which is anticipated in that end) and the means by which the

end will be brought about.

A central point, however, for the New Natural Law account at this juncture is that

intention is thus an agent-centered, or first-personal reality. It is from the point of view of

the agent as seeking some good that a proposal is considered and adopted. What the

agent intends is thus a matter of this proposal, and of nothing else: facts of the world, of

causality, or of the proximity of one effect to another do not determine the agent’s

intention; and it is thus only by adopting the perspective of the acting person that an

agent’s action can be best understood.

24
From this perspective, certain consequences that might, in a more “objective” or

third-personal account of action appear intended, will not in fact be so. Thus Grisez,

Boyle and Finnis have argued that craniotomy, in which a fetus’s head is crushed to

facilitate removal from the mother, need not involve an intention to kill the child. The

intention rather can be “to change the dimensions of the child’s skull to facilitate

removal.” Less controversially, but utilizing the same understanding of action, refusal of

life-saving treatment need not be suicidal if it is done to avoid the burdens of treatment,

and the provision of death-hastening analgesics, on the one hand, and the use of lethal

force in prevention against rape or attack, on the other, need not be homicidal, i.e., it

need not involve an intention to kill.

4. Political Authority and the Political Common Good

In 1979, Grisez and Boyle published Life and Death with Liberty and Justice; in

1980, Finnis published Natural Law and Natural Rights. Together the two books marked

the beginnings of a “discussion of political theory” carried on between the three thinkers.

Grisez and Boyle describe their early part in this discussion as conceding “somewhat

too much to political theories that are prevalent in the United States.” By this, they refer

to an indebtedness to John Rawls’s antiperfectionism. In Life and Liberty Boyle and

Grisez allowed that it would be wrong for the state to incorporate substantive moral

values, such as the good of life, into its governing principles, and hence into its

conception of the common good of the state. In part this was motivated by a need to

find a principled limit on the state’s sovereignty over the lives, including the moral and

religious lives, of its subjects.

25
Finnis’ work in Natural Law and Natural Rights, by contrast, argued for a

perfectionist account of the state: the basic goods of human persons were not to be

ruled out of the practical considerations at the heart of political rule, as in Rawls’s work.

Yet Finnis too, like Grisez and Boyle, has been sensitive to the need for liberty in the

state, and the limits of state sovereignty over individuals; all three oppose the view,

encouraged by what Finnis calls a “quick” reading of Aquinas, according to which

“government should command whatever leads people towards their ultimate (heavenly)

end, forbid whatever deflects them from it, and coercively deter people from evil-doing

and induce them to morally decent conduct.”

Accordingly, Grisez, Finnis, and Boyle have converged on an account of political

authority and the common good that, while rooted in the basic goods, nevertheless sees

the state as a “community co-operating in the service of a common good which is

instrumental, not itself basic.” Political authority is necessary because individuals,

families, and groups, while sufficient in one sense for the pursuit of all the basic goods,

including the goods of marriage and religion, are nevertheless thwarted in their pursuit

of these goods by (a) lack of social coordination; (b) the hostility of outsiders; (c) the

predatory behavior of some insiders; and (d) circumstances beyond the control of

individuals that leave them in conditions of more than usual dependence but without the

usual personal and social aids.

Political authority, and optimally, a political authority itself subject to law, is

necessary in order to pursue these goals efficiently and fairly; but together, these goals

comprise a set of conditions instrumentally necessary for individuals and groups to

directly pursue the basic goods, individually and cooperatively. The political common

26
good is thus described by Finnis as “the whole ensemble of material and other

conditions, including forms of collaboration, that tend to favor, facilitate, and foster the

realization by each individual [in that community] of his or her personal development.”

5. The Ultimate End of Human Beings

As Grisez notes, “Thomas Aquinas held that the true ultimate end for all human

beings is God alone, attained by the beatific vision.” Grisez’s argument with Aquinas on

this point has resulted in a reframing of the first principle of morality.

St. Thomas argues to the above claim about the beatific vision from the claims

that only the beatific vision could be absolutely fulfilling to human beings and that the

final, or ultimate end of human beings must be absolutely fulfilling. It follows from these

two claims that the beatific vision is the ultimate end. However, the second of these

claims implies, as Thomas shows, that only a perfect good can be taken as one’s final

end; and this in turn implies that an agent can will only one final end at one time (since

willing a second would imply that the first was in some respect imperfect). But, argues

Grisez, this claim is false: someone living in God’s love who nevertheless commits a

venial sin has two ultimate ends, one God, the other the end intended in the venial sin.

So the claims that imply that agents can intend only one end (that the ultimate end must

be absolutely fulfilling, and that only what is regarded as a perfect good can be willed as

a final end) are false; thus St. Thomas’ argument about the beatific vision is unsound.

By contrast, Grisez’s views on our ultimate end are shaped by his understanding

of what we are directed to by the principles of practical reason: the indiscriminate “well-

being and flourishing of ourselves and everyone else;” we thus “reasonably take as our

27
ultimate end an inclusive community of human persons along with other intelligent

creatures and God—insofar as we know other intelligent creatures and God and can

somehow cooperate with them and/or act for their good.”

Our ultimate end is not, therefore, the beatific vision, but a state of affairs that

includes all persons with whom or for whose sake we can act, including God, with

whose creative activity we cooperate in pursuing basic goods. Grisez calls this state of

affairs “integral communal fulfillment.” By revelation we can know that we are promised

the immortality necessary to achieve this state of affairs, which adequate reflection

reveals to be dynamic and increasing in perfection, rather than static and “complete,” or

unimproveable.

This new account of the ultimate end is meant to replace an earlier account of

the ultimate end and the first principle which, in a sense, divided what the new account

unifies. In an earlier essay, Grisez had argued that the ultimate end of human beings

was a state of affairs: a cooperative relationship with God. And Grisez, Finnis, and

Boyle in a different essay had argued that an ideal – integral human fulfillment –

specified the morally good will by way of the first principle of morality.

On the new account, by contrast, there is still a state of affairs posited as the

ultimate end, but it is much broader: integral communal fulfillment, understood as

including a relationship between all persons capable of cooperation, human, angelic,

and divine. Grisez argues that this state of affairs, which he identifies as the kingdom of

heaven, is itself the object of intention of all upright persons (although not all upright

persons have as complete or adequate an understanding of this end as have those

28
possessed of Christian revelation). So the first principle of morality is now linked

together with the ultimate end and prescribes the intending of that end by all upright

persons.

NATURAL RIGHTS

The concept of Natural rights is closely associated with the philosophy or theory

of Natural law. According to this theory, nature or God alone regulates the wisdom and

the activities of men. The kings being the divine origin, as representatives of God, the

rules framed by them were considered divine in nature. But in the age of enlightenment

( or Age of Reason) of the eighteenth century a number of Western advocators like,

Hobbes, Locke, Hugo Grotius, Rousseau, Samuel Pufendorf, et.al., challenged the

origin of divine concept to natural law. A natural right is nothing but, rights based on just,

fair and reasonable. This means, the individuals unite themselves to form political

societies through mutual consent, and agree to form a government of their own. It will

enable them to lead their life through common rules and regulations framed by either

them or their representatives. At the same time, they accept a set of legal and moral

duties to be observed or bound by them in the exercise of their rights in order to live in

peace and security without any violence. However, this being the central philosophy

advocated by all philosophers of natural law, there is a difference of opinion that exists

among them. A section of modern naturalists argue that since human rights are closely

associated with the concept of natural rights, there exist no difference between natural

and human rights; both are one and the same. But some traditionalists argue that since

natural rights are not framed by men and are the dictates of right of reason of nature,

29
both cannot be equated. According to them, since natural rights are being above the

power of any authority either state or international bodies, and are universal in nature,

they cannot be equated with human rights, because they are adapted by human society

through an international body and not of divine origin. A close examination of both the

above pictures clearly explains the theoretical differences. In a simple manner, natural

rights essentially are the Life, Liberty and Freedom that an individual possess and the

way to live without any disturbance or interference by others. Accordingly, by birth, the

rights are inherited with the body of the individual as the gifts of God or nature. Hence,

they are inherent or inalienable rights. The second picture explains the arguments of the

modern natural philosophers' view that though a human being is born with free will, as a

social animal one has to have minimal limitations in the exercise of their natural rights.

Because, man himself created the modern concept of state, they have to adhere to the

laws framed by the state, so as not to disturb the rights of others. These rights are

otherwise referred to as Legal Rights that are sanctioned by the authority of law which

entitles a claim to an individual to have his rights enforced legally.

Conclusion:

The evolution of natural law theory started in the fifth-century with Sophists

accepted dichotomy, but it was until Aristotle came that the first articulated systematic

theory of natural law started.

From Aristotle to the west’s preeminent theorist of the natural law Thomas

Aquinas which states that the natural law is all about God and that the divine nature is

the subject matter of science. The second part of his theory on natural law is the grace-

30
aided attainment of a cognitive-affective union with God by human activity and the third

part treats Christ and his Church and sacraments, the necessary means for man’s union

with God. The natural law, according to Aquinas, has certain basic and self-evident

precepts or dictated knowable to any human with a proper functional intellect and a

medium of experience to the world. Paraphrasing Thomas, is the precept that “anything

good is to be pursued as of the opposite of good, evil is to be avoided in all human

cost.”

In the 14th century through 16th century period from the Middle Ages to

Modernity, in this period writers on natural law gave greater emphasis to the rights of

the individual, and in particular to the rights to property and freedom. Second, natural

law doctrines of original freedom and equality were used to derive the legitimacy of law

and government from the consent of the people, sometimes with the implicit or explicit

threat of the withdrawal of that consent in cases of abuse of power.

Natural law is essentially a framework law, a skeleton law. It does not ordinarily

give us a concrete norm directly applicable to action here and now in the involved

situations of actual life. It does not, for instance, tell us which of the many possible

forms of laws about property is right in the abstract. Neither the capitalistic nor the

feudal system of property is imposed by the natural law. But it judges each and every

existing system of property in terms of justice. Moreover, natural law does not condemn

the wage contract as such or the socioeconomic order of which the wage contract is so

important a part, but it makes clear that a social order in which the so-called iron law of

wages rules the labor market violates justice and equity. Further, natural law does not

31
proclaim that democracy as a form of government is the sole admissible mode of

political organization; yet it does tell us that any form of government, even one that is

decked out in the trappings of democracy, which does not recognize the fundamental

rights of the person and of the family is tyrannical and may, therefore, rightly be

resisted. Natural law, finally, does not say that the Security Council of the United

Nations is, in its concrete form, good and efficient; but it does forbid the independence

of a small nation to be sacrificed out of mere expediency for the sake of the “security” of

a great power. This quality of the unvarying natural law, which elevates it above the

changing historical positive law, which makes it both the ideal for lawmakers and the

critical norm for existing laws, renders it possible for the natural law to govern the

acquisition and exercise of political power itself.

32