THE DIFFERENCE BETWEEN REASON AND WILL

REASON AND WILL

Introduction
Reason and will can generally be considered as standing in an antithetical relationship.
This fact originates from the different historical developments of the natural law and legal
positivist theories. Originally, natural law was an idea that explained the nature of morality and
not the nature of law. Man could (by using reason) understand the revelation of the Gods. By
this, he could understand how he should behave in respect of other human beings around him.
(Minnevick, 2017).
Legal positivist theories have historically been considered originating from the free will of
the human being. This means that if the law is made by man the law is valid even if totally
lacking any kind of reason or morals. Here we can see two contraposed concepts of law.
Natural law (and reason) is the first concept and legal positivism (and free will) is the second
concept of law.(Minnevick, 2017).

Learning Objectives:
1. Define Reason and Will;
2. Differentiate knowing and actually executing a good moral decision; and
3. Judge their own moral behavior in terms of planning and execution in important moral
experiences.

Discussion
The concept of reason was central in the tradition of classical natural law. Reason was
crucial for people to understand the natural laws. Plato wrote that reason was crucial in order to
understand his concept of Ideas. Cicero developed the concept of reason even further by
stating that reason was an inborn gift from the Gods. Reason was therefore crucial for the
relationship between man and God. Reason (since it had been given to all people) therefore
made natural law available and applicable for all human beings. Reason and Will within the
Theories Presented by Suárez and Finnis In this chapter, will follow an explanation of two
opposing ideas on reason and will. The first is presented by one of the most influential purely
penal law theorists Suárez and the second is presented by Finnis.
One of the most influential purely penal law theorists of all time was Suárez. He
developed a theory on the concepts of reason and will that Finnis several centuries later would
oppose to. Suárez explained free and deliberate human actions as consisting of a chain of
interacting components. He explained that the human mind was intelligent enough to, by using
reason, understand and see a possible outcome in the end of that chain of actions.
Furthermore, Suárez meant that if a person could see that possible ‘good’ outcome of a certain
chain of actions, the situation still required for that person to actively desire that ‘good’ end for
himself. Ultimately, that desire was what Suárez considered as the free ‘will’ of the human mind.
The thoughts following that desire (for instance the ability of an intelligent human mind to
consider different outcomes by different choices) were what Suárez considered the ‘reason’. So
far, Suárez agreed with the ideas of St Thomas Aquinas.
In contrast to St Thomas Aquinas, Suárez wrote that one’s decision will start one’s
actions. This meant that it was the ‘will’ that lay behind human action and the ‘will’ of a superior
that controlled the political arena. St Thomas Aquinas drew a distinction here. In the process of
a persons’ decision-making, he added a component that he called ‘command’. This ‘command’
he meant stemmed from one’s reason. It would act as a guideline to how one should act. This
‘command’ could be explained as the result of one’s intelligence that steered one’s decisions
and therefore also one’s actions. The purpose of the ‘command’ was to make one choose an
action with the aim at ‘the good of an end’ and the aim at taking into consideration the
appropriateness of the means. These two aims should be attributed to ‘reason’ rather than the
free ‘will’. The ‘command’ however presupposed also the free ‘will’ since one’s desire for a
certain outcome was what steered one’s actions.
To sum up what Suárez has stated about the concepts of reason and will and to also
see the difference between the ideas of Suárez and St Thomas Aquinas, following will be
mentioned. Suárez and St Thomas Aquinas agreed on the idea that the free ‘will’ of the human
mind was reflected in the desires that humans felt, when assessing between which choices to
make in situations that offered several possible outcomes. They also agreed on the ideas that
thoughts following that desire, as for instance the assessment of advantages and disadvantages
of a certain choice, were attributed to reason. In contrast to one another, Suárez believed that it
was the ‘will’ that lay behind human action and the ‘will’ of a superior that controlled the political
arena. St Thomas Aquinas however, added a component to a person’s decision-making, that he
called ‘command’. This ‘command’ he meant stemmed from one’s reason. The ‘command’ was
a guideline for peoples’ behaviour.
The theory of natural rights developed by Finnis falls well into the category of natural
law theory. Finnis focuses greatly on the works of St Thomas Aquinas. The work of Finnis has
had importance to modern natural law thinking in two specific ways. His ideas have their base in
the Thomistic ideas. However, they develop from that base in an innovative and distinctive way.
Finnis’ discussions on classical naturalist concerns with focus on the moral and ethical nature of
law has influenced the modern discourse of ‘rights’ in the legal and political world. Also, his
works take a step away from the formal ideas of post-positivist traditions. They add a modern
perspective of natural law to the jurisprudential debate.
Furthermore, Finnis argues that humans can understand what is ‘good’ (on a basic level)
by using their reason. This reason lies within the human nature. Finnis also points out certain
generalisations of what most people (in different human societies despite cultural diversities)
find to be the most important values. He calls these values the ‘basic forms of human good’.
When applying these basic goods mentioned above, Finnis argues that to understand what in
practice is considered right and wrong one needs to use the tests of ‘practical reasonableness’.
The purpose of these tests is to relate moral and ethical criteria to action and consequences.
This ‘practical reasonableness’ combined with the basic goods represents the structure of what
Finnis defines as the ‘natural law’ analysis. By following these two factors mentioned, Finnis
argues that every society can avoid gross injustice and enjoy a society based upon basic rights
for all.(Melissaris, 2012)
 In short, Finnis has commented on free will in connection to law. He has answered to
the question why the purely penal law theorists greatly emphasized the act of will, in the
explanation of law. His answer relates to the principle that the interplay of reasonableness and
sheer decision in the politico-legal arena is illuminated by developing an analogy with an
individual’s own decision-making and action.
All in all, reason has from the very beginning of the traditions of natural law been a
central element. Reason has made it possible for humans to understand the underlying morals
that the natural laws consisted of.106 For Plato, reason was important since it made it possible
for the human mind to understand the Ideas of good and evil and to recognize concrete subjects
existing in actual reality. Cicero explained reason as a gift for humanity that was given by the
Gods. This gift was given to all people so that they could be able to understand what the natural
law was and to enjoy certain rights stemming from that natural law. St Thomas Aquinas went a
step further and explained his view upon reason and God being the same. He also stated that
unmoral laws that were unreasonable were in fact not law at all. During the time of Plato, natural
law was an abstract idea that the human mind could understand by reasoning. With the works
of Grotius natural law developed into a more graspable idea of a set of rules and duties that
consisted of the law of nations.
Furthermore, Suárez presented ideas that related both to the concepts of reason and
free will. In his opinion, reason and will were two different components in different ends of a
chain consisting of human actions. Reason represented the intelligence that human beings
possessed. Humans used this intelligence when assessing certain outcomes of different
actions. Free will was expressed through the desire within humans to choose an outcome that
was most desirable for oneself. Suárez stated that the desire within human beings was steered
by their reason. Their reason demanded a certain choice of action and through that, a certain
outcome. In his work, Finnis developed the theories of natural law into becoming a general idea
of what humanity considered being good. This general idea of what was good could be
understood by practical reasoning. (Randall, 2009)
In the paragraph above we see yet again, a connection between reason and will.
However, they are different components, belonging to different legal traditions. As mentioned,
reason has been discussed as a concept related to natural law traditions. The free will has been
discussed both in the natural law and legal positivist traditions. The natural law and legal
positivist traditions have as mentioned been two opposing traditions. Therefore, this indirectly
means that also reason and will are opposing concepts. The very core definitions of reason and
will are very different. Reason has historically always been connected to morals. The free will
has not been connected to morals, as we have seen an example of in the theories of Kelsen. A
concrete example of a legal system where the free will has stood on its own was in the Nazi
Third Reich in Germany. Luckily, modern legal theories developed later, by such thinkers as
Finnis, Dworkin and Raz have pinpointed the importance of free will being influenced also by
reason.
After having surveyed the historical views upon the concept of reason and the concept of
will, it is clear to see the importance of both as components in any ‘good’ legal theory. A well
functioning legal system should always be based upon such a legal theory. Both the concepts of
reason and will are crucial for a successful legal system. They are dependent on one another.
This indirectly means that the concepts of reason and will are opposites. Imagine a battery with
a negative pole and a positive pole. They are both crucial for the battery to work, yet they have
totally different polarities.
Suggested Readings:
John Kelly, A Short History of Western Legal Theory (OUP 1992)
Richard Tuck, Natural Rights Theories: Their Origin and Development (CUP 1979)

Assessment:
Individual reflection on a most recent personal dilemma.
Briefly answer the question below and present the same in class.
How did I decide and what did I actually do during my most important moral experience
in the past year.

References:
Francisco Suárez, De Legibus ac Deo Legislatore (first published in Coimbra 1612)
Book I, ch 9.
John Mitchell Finnis, Natural Law and Natural Rights (Clarendon Press 1980)
Minnevik, Natalie, Reason and Will A Historical Review from the Point of View of the
Theories of Natural Law, Legal Positivism and the Analytical Philosophies of Law Presented by
Dworkin and Raz
St Thomas Aquinas, Summa Theologica Ia-IIae, 5 vols (first published 1485, Fathers of
the English Dominican Province trs, Christian Classics 1948)
 MORAL THEORIES AND MENTAL FRAMES: Why they are important

Introduction

Moral theories are not mere theories in the dismissive sense either. They too are based
on repeated observations, are likely to integrate hypotheses, and attempt to explain and justify a
range of moral or ethical judgements about particular cases.

But neither are moral theories quite like scientific theories. The data that scientific
theories try to explain is provided by observation of the natural world. The data that moral
theories try to explain is our considered moral judgements; judgements that have, we might say,
survived the test of good logical and critical thinking. There is an obvious difference here. In the
case of moral theories, we use our considered judgements to supply the data by which we judge
the adequacy of moral theories.

Still, even with this difference acknowledged, we do use moral theories, and often in very
similar ways to their scientific counterparts.

For the strategist, a useful theory provides a way of understanding the dynamics of the
complex strategic environment, recognizable indicators or warning signals of change, and
agreed-upon means of dealing with change.  Simply put, a theory is one's notion of cause and
effect.

Learning Outcomes:
1. Explain the role of mental frames in moral experience; and
2. Classify the dominant mental frames.

Discussion

Moral Theories

Through the ages, there have emerged multiple common moral theories and traditions.
We will cover each one briefly below with explanations and how they differ from other moral
theories.

Consequentialism

Consequentialist theories, unlike virtue and deontological theories, hold that only the
consequences, or outcomes, of actions matter morally.  According to this view, acts are deemed
to be morally right solely on the basis of their consequences.  The most common form
of consequentialism is utilitarianism.
 Deontology
Deontological theories (derived from the Greek word for duty, deon) base morality on
certain duties, or obligations, and claim that certain actions are intrinsically right or wrong, that
is, right or wrong in themselves, regardless of the consequences that may follow from those
actions.  What makes a choice or an action right is its conformity with a moral norm.  Thus, an
agent has a duty to act in accordance with a moral norm, irrespective of the (potentially
beneficial) effects of acting otherwise.

We might say that parents, for example, have an obligation to take care of their children. 
On a deontological view, parents must fulfill this obligation, even if breaking the obligation were
to result, for the parents, in some great benefit (increased financial savings, for example).

The deontological view holds that some actions cannot be justified by their
consequences. In short, for the deontologist, the ends do not justify the means.

Indeed, Immanuel Kant, whose formulation of deontological ethics is perhaps the most
well known, wrote that one must “act so that you treat humanity, both in your own person and in
that of another, always as an end and never merely as a means.”  As with other deontologists
(Thomas Hobbes and John Locke, for example), Kant held that the basis of our moral
requirements is a standard of rationality.  In the case of Kant, the standard is a categorical
imperative.  This single principle of rationality comprehensively includes all of our particular
duties.

Justice as Fairness
Justice as fairness refers to the conception of justice that John Rawls presents in A
Theory of Justice. This conception of justice concerns society’s basic structure—that is,
“society’s main political, constitutional, social, and economic institutions and how they fit
together to form a unified scheme of social cooperation over time.”1

Rawls constructs justice as fairness in a rather narrow framework and explicitly states,
“Justice as fairness is not a complete contact theory.” Its purpose is to show how we ought to
allocate a cooperative surplus of resources to individuals in society. As a result, justice as
fairness relies on two implicit assumptions about the societies in question: first, social
cooperation is possible and can work to everyone’s mutual advantage, and second, there exists
a moderate surplus of available resources to be distributed. Justice as fairness cannot be used
to determine the just distribution of sacrifices to be made by a society’s members when
resources are scarce. More generally, it cannot help us identify just social policies in societies
where background conditions (e.g., scarcity of natural resources, cultural barriers, war) have
eliminated the possibility of mutually advantageous social cooperation.

The process for determining how the basic structure should be arranged is based on a
thought experiment in which rational, mutually disinterested individuals choose principles of
justice from behind a veil of ignorance, a condition that specifies they do not know specific
details about themselves (e.g., personal values, race, gender, level of income) or the society in
which they live (e.g., societal stage of development, economic circumstances). However, when
choosing these principles, the parties do possess general social, psychological, and economic
knowledge, and they also know that the circumstances of justice obtain in the society to which
they belong.
 From this hypothetical initial situation, which Rawls calls the “original position,” these
individuals will presumably endorse two principles of justice. The first, known as the
equal liberty principle, is that “each person is to have an equal right to the most extensive
scheme of basic liberties compatible with a similar scheme of liberties for others,” and the
second is that “social and economic inequalities are to be arranged so that they are both
reasonably expected to be to everyone’s advantage, and attached to offices and positions open
to all.”

Rawls’ primary argument for the two principles is that they would be chosen over any
variation of utilitarianism, which he considers the strongest opposition to justice as fairness.
Constrained by the veil of ignorance, the parties in the original position (as mutually
disinterested rational agents) try to agree to the principles which bring about the best state of
affairs for whatever citizen they represent within society. Since the parties are all unaware of
precisely what social role they will occupy, they strive to maximize their individual shares of
primary goods. These goods are defined as “things that every rational man is presumed to
want” regardless of this person’s rational plan of life and include (among other things) rights,
liberties, social opportunities, and income. Rawls argues, largely through the appeal to the
maximin rule, that the parties in the original position would favor the equal liberty principle over
variations of utilitarianism. He further argues that the parties would support using the difference
principle to regulate the distribution of wealth and income instead of a principle of average utility
(constrained by a social minimum) because the difference principle provides a stronger basis for
enduring cooperation among citizens.

The full application of justice as fairness can be regarded as a 4-stage sequence. The
deliberations concerning the two principles occur at the first stage. With the two principles
established, the parties then progressively thin the veil of ignorance and, as they acquire more
specific knowledge about society at the subsequent stages, determine more specific principles
of justice. At the second stage, the parties learn more about society’s political and economic
circumstances and create a constitution that is consistent with the two principles. At the third
stage, the parties agree to laws and policies which realize the two principles within the context
of the agreed-upon constitutional framework. At the fourth stage, the parties possess all
available information about their society and apply the established laws and policies to particular
cases.

One of Rawls major tasks in presenting justice as fairness is to show that the society it
generates can endure indefinitely over time. To achieve this aim, Rawls deploys the just savings
principle, a rule of intergenerational savings designed to assure that future generations have
sufficient capital to maintain just institutions. Additionally, Rawls argues that the society
generated by the two principles is congruent with citizens’ good and that citizens can develop
the necessary willingness to abide by these principles. As a result, the society generated by
adherence to justice as fairness is stable and can be expected to endure indefinitely over time.

Notably, however, the arguments for the stability of justice as fairness that Rawls
presents in A Theory of Justice do not prove convincing. Rawls does not account for reasonable
pluralism, a critical aspect of any constitutional democracy with the guaranteed liberties that
Rawls specifies. Thus, Rawls recasts his arguments for the stability of justice as fairness
in Political Liberalism and strives to demonstrate that citizens, despite reasonable disagreement
about many issues, will agree on a limited, political conception of justice through an overlapping
consensus of their individual viewpoints.

Utilitarianism
 Utilitarianism states that actions are morally right if and only if they maximize the good
(or, alternatively, minimizes the bad).  Classical utilitarians like Jeremy Bentham and John
Stuart Mill (as well as many contemporary utilitarians) take ‘the good’ to be pleasure or well-
being.  Thus, actions are morally right, on this view, if and only if they maximize pleasure or
well-being or minimize suffering.

This approach is sometimes called hedonistic utilitarianism.  For hedonistic utilitarians,

the rightness or our actions are determined solely on the basis of consequences of pleasure or
pain.

Utilitarian theories may take other goods into consideration.  Preference utilitarianism,

for example, takes into account not just pleasures, but the satisfaction of any preference.

Utilitarianism can also be divided along other lines.  Act-utilitarianism claims that we

must apply a utilitarian calculation to each and every individual action.  By making this
calculation, we can thereby determine the moral rightness or wrongness of each action we plan
to take.

Rule-utilitarianism eases the burden that act-utilitarianism places on practical reasoning

by establishing moral rules that, when followed, brings about the best consequences.  Rule-
utilitarianism can be illustrated by the rule “do not kill.”  As a general rule, we would be better off,
that is, the best consequences, or state of affairs, would be brought about, if we all followed the
rule “do not kill.”

Objections to Utilitarianism:

There are a number of objections to utilitarian theories, both in their act- formulations and in
their rule- formulations.

(1)  Act-utilitarianism, for example, seems to be impractical.  To stop to calculate the possible
outcomes of every act we intend to make, as well as the outcomes of all of the possible
alternatives to that act is unrealistic.  Moreover, it may hinder one’s ability to bring about the
best consequences – for example, in cases where a quick response is vital (as in responding to
a car wreck).

(2)  Others have objected to utilitarianism on the grounds that we cannot always predict the
outcomes of our actions accurately.  One course of action may seem like it will lead to the best
outcome, but we may be (and often are) mistaken.  The best it seems we can do, then, is to
guess at the short-term consequences of our actions.

(3)  Objections to utilitarianism have also been made on the grounds that it is excessively
demanding and places too large a burden on individuals.  Since utilitarianism says that acts are
morally right if and only if they maximize pleasure or well-being, it seems that leisure activities,
such as watching television, may be morally wrong because they do not maximize well-being. 
Any person watching television could, after all, be doing something else – something
that would maximize utility, like helping others or volunteering.

(4)  Finally, utilitarianism receives criticism because seemingly immoral acts and rules can be
justified using utilitarianism (this criticism is applicable both to act- and rule- utilitarianism).  
Genocides, torture, and other evils may be justified on the grounds that they, ultimately, lead to
the best outcome.  Unjust rules – for example, laws that legalize slavery or apartheid – might
also be justified on utilitarian grounds.

(3)  Virtue theories encounter problems with moral dilemmas in which two (or more) virtues
conflict.  In other words, the requirements of one virtue may be opposed, or contradictory, to the
requirements of another.  The requirements of honesty, for example, require us to tell the truth,
even if it is hurtful.  The virtues of kindness or compassion, on the other hand, point to
remaining silent, or perhaps even lying, in order to avoid harm.

Virtue Ethics
Focuses on the character of the agent.  A virtuous agent will act morally.

Virtue ethics takes its philosophical root in the work of the ancient Greek philosopher
Aristotle.   Virtue theories claim that ethics is about agents, not actions or consequences.  Living
an ethical, or good life, then, consists in the possession of the right character traits (virtues) and
having, as a result, the appropriate moral character.

Mental Frames

In his influential book The Fifth Discipline, Peter Senge refers to hypotheses about cause
and effect as mental models.  To Senge, mental models are “deeply ingrained assumptions,
generalizations, or even pictures and images that influence how we understand the world and
how we take action” (Senge 1990: 8).  Mental models are useful and, indeed, unavoidable.  By
nature, we form beliefs about cause and effect.  One person may form a mental model that says
people are best moved toward excellent work by the promise of monetary rewards.  Someone
else may hold to the mental model that the best determinant of good and diligent work is the
intrinsic satisfaction of the effort itself.  Both of these mental models can be stated in cause and
effect terms.  A good mental model is “disconfirmable.”  That is, we can put models and
hypotheses to the test through experimentation or simply through continued observation of
events and results.

To put theories or mental models to work, we use an approach referred to as systems

thinking.  While strategic thinking involves consideration of the big picture, systems thinking
begins when we consider a real-world phenomenon and seek to understand the cause and
effect relationships characteristic of a “system.”  A systems thinker wonders how an
organization works, looking at the parts as dynamic aspects of the whole.  It is the
interrelationships of the elements of an organization that interests the systems thinker. 
Though a mental model—a hypothesis about cause and effect—provides a useful way of
understanding the dynamics and working of the world around us, blind adherence to entrenched
models can be dangerous.  Once we close our eyes to disconfirming evidence, once we fail to
see the weaknesses of our assumptions about cause and effect, we have failed as systems
thinkers.  History, of course, is replete with examples of people adhering stubbornly to old
paradigms despite overwhelming evidence that a new way of thinking has become necessary.
Mental models become the frames through which we view the world.  We attend to what
is inside our frame, oblivious sometimes to what occurs outside our frames, which can lead to
dangerous blind spots.  Frames can be useful insofar as they direct our attention toward the
information we seek.  But they can also constrict our peripheral vision, keeping us from noticing
important information and, perhaps, opportunities.  Once liberating, mental models can become
shackles.
 As an illustration of the way in which mental models and frames can get out of hand,
consider Donald Schon’s concept of a generative metaphor. A generative metaphor is an
“implicit metaphor that can cast a kind of spell on a community.  All solutions are understood in
terms of the implicit metaphor.”  Some work cultures, for example, use a sports analogy as their
generative metaphor, ubiquitously describing events in sports language and casting solutions as
“game plans.”  A generative metaphor like this can be healthy, but it can also restrict creativity
and problem-solving, since the “team” may miss out on ideas and options not endemic to the
metaphorical world at hand. 
At times, an over-used generative metaphor can lead to a group dynamic known
as groupthink.  When cultural propensities like this become problematic, leaders can stimulate
positive organizational change by introducing new and useful generative metaphors as they
communicate with others.  The new metaphor can provide people with a lens through which to
see things anew and lead to positive change in the work atmosphere and business result.

Assessment

1. Identify which picture best describes moral theory and mental frame.
 2. Submit a Reflection Paper. What is the bigger context in which I make my
individual decisions?

References

John Rawls, Political Liberalism: Expanded Edition (New York: Columbia University Press,

2005), xli (fn 7).

John Rawls, A Theory of Justice: Revised Edition (Cambridge: The Belknap Press of Harvard
University Press, 1999), 15.

John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores,
MI: Scholarly Press, 1977)

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press,
1979)

Michael Moore, “Law as a Functional Kind,” in George, Natural Law Theory, 188- 242
 Aristotle and St. Aquinas on Virtue Ethics

Introduction
For Aristotle, prudence or practical wisdom is a virtue of thought that is practical rather
than theoretical and deliberative rather than intuitive. It is the intellectual virtue that perfects
reasoning in regard to decision making in the realm of human action. To have this virtue is to be
good at thinking about how to live a fulfilled life as a whole, and to be successful in so doing.
The prudent person is the only one who is truly just, courageous and temperate, and the good
person is truly good only if he is prudent. According to Aristotle, there is a fundamental
connection between prudence and moral virtue. This connection depends on the pre-existence
of certain natural qualities. Although Aristotle stresses the importance of prudence and the
ethical life, he holds that the human person - endowed as he is with the divine element of
reason - is capable of an even higher way of life.

Learning Outcomes
1. Articulate what virtue ethics is;
2. Critique virtue ethics; and
3. Make use of virtue ethics.

Discussion
This is the life of contemplation, the life dedicated to the appreciation of truth, the life that
is closest to the way of life of the gods. For St. Thomas Aquinas, Aristotle is the Philosopher. In
treating of prudence, Aquinas follows Aristotle very closely especially in his Commentary on
Aristotle’s 'Nicomachean Ethics. He teaches that prudence is a virtue of the practical intellect
that is related in a particularly close way to the moral virtues. In order to be morally good, a
person needs the moral virtues, and these in turn need the judgment of prudence. Aquinas’s
interpretations of Aristotle’s notion of prudence are more accurate than, and indeed represent
improvements on, those advanced by other leading authorities of his time, including St. Albert
the Great in his Super Ethica. In ways that are significant, he changes and develops some of
Aristotle’s teachings on prudence in both his Commentary on Aristotle’s ‘Nicomachean Ethics’
and in some of his more theological works, e.g., his Summa Theologiae. For example, Aquinas
holds that Aristotle’s conception of ultimate end or human flourishing - by Aristotle’s own
statement - can only be realized in an imperfect way in this life.
For the virtue theorist the primary question is: how can I live a good life? Aristotle
thought that the best life was the life of a fully realized human being: a human being who
demonstrated excellence in all human capacities, e.g., the capacity for emotion, for practical
rationality, for theoretical rationality. This was a life of human flourishing. Just as the virtues of a
tool (e.g., a pen) are those features (e.g., having flowing ink) that enable the tool to perform its
proper function (e.g., writing), so the virtues of a person are those features (kindness,
generosity, courage…) that enable it to excel as a human being. Virtues are dispositions to act
in certain ways for certain reasons and with certain feelings. Amy has the virtue of courage if
Amy tends to take the appropriate risks for the sake of important things without panicking. Amy
has the vice of cruelty if she tends to hurt others without concern for their well-being and takes
pleasure in it. Unlike utilitarianism and deontology, virtue ethics cannot give us a formula for
deciding how to act. Rather, it can only suggest a model for how we should aim to be, what sort
of character we should strive for: have those character traits that are present in a fully
flourishing human being.

The term “natural law” is ambiguous. It refers to a type of moral theory, as well as to a
type of legal theory, but the core claims of the two kinds of theory are logically independent. It
does not refer to the laws of nature, the laws that science aims to describe. According to natural
law moral theory, the moral standards that govern human behavior are, in some sense,
objectively derived from the nature of human beings and the nature of the world. While being
logically independent of natural law legal theory, the two theories intersect. However, the
majority of the article will focus on natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily
derives, at least in part, from considerations having to do with the moral merit of those
standards. There are a number of different kinds of natural law legal theories, differing from
each other with respect to the role that morality plays in determining the authority of legal
norms. The conceptual jurisprudence of John Austin provides a set of necessary and sufficient
conditions for the existence of law that distinguishes law from non-law in every possible world.
Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap
between natural law moral and legal theories.  Similarly, the neo-naturalism of John Finnis is a
development of classical natural law theory. In contrast, the procedural naturalism of Lon L.
Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive moral
constraints on the content of law. Lastly, Ronald Dworkin’s theory is a response and critique
of legal positivism. All of these theories subscribe to one or more basic tenets of natural law
legal theory and are important to its development and influence.
Two Kinds of Natural Law Theory
At the outset, it is important to distinguish two kinds of theory that go by the name of
natural law. The first is a theory of morality that is roughly characterized by the following theses.
First, moral propositions have what is sometimes called objective standing in the sense that
such propositions are the bearers of objective truth-value; that is, moral propositions can be
objectively true or false. Though moral objectivism is sometimes equated with moral realism
(see, e.g., Moore 1992, 190: “the truth of any moral proposition lies in its correspondence with a
mind- and convention-independent moral reality”), the relationship between the two theories is
controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one
species of moral realism, but not the only form; on Sayre-McCord’s view, moral subjectivism
and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law
moral theory is committed only to the objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the claim that
standards of morality are in some sense derived from, or entailed by, the nature of the world
and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature
of human beings as that which defines moral law: “the rule and measure of human acts is the
reason, which is the first principle of human acts” (Aquinas, ST I-II, Q.90, A.I). On this common
view, since human beings are by nature rational beings, it is morally appropriate that they
should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral
law from the nature of human beings (thus, “natural law”).

The strongest construction of the Overlap Thesis forms the foundation for the classical
naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law;
(2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that
govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can “think of
eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.)
‘laws’ by which the universe is ordered.” Divine law is concerned with those standards that must
be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by
natural reason alone; the precepts of divine law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the
behavior of beings possessing reason and free will. The first precept of the natural law,
according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is
worth noting that Aquinas holds a natural law theory of morality: what is good and evil,
according to Aquinas, is derived from the rational nature of human beings. Good and evil are
thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (that is, that
which is promulgated by human beings) is valid only insofar as its content conforms to the
content of the natural law; as Aquinas puts the point: “[E]very human law has just so much of
the nature of law as is derived from the law of nature. But if in any point it deflects from the law
of nature, it is no longer a law but a perversion of law” (ST I-II, Q.95, A.II).

Assessment

Group discussion using the Aristotelian (mean between two extremes) and Thomistic
perspectives on gay marriage.

References

Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett Publishing Co.,

1988)

Jeremy Bentham, Of Laws In General (London: Athlone Press, 1970)

 Jeremy Bentham, The Principles of Morals and Legislation (New York: Hafner Press,
1948)

Robert P. George, “Natural Law and Positive Law,” in George, The Autonomy of Law,
321-334

Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Clarendon

Press, 1992)

Immanuel Kant’s Theory of Rights

Introduction

It is common for Kant's rights-based liberalism to be contrasted with the communitarian

authoritarianism of the later Fichte and of Hegel, and it is the concept of autonomy that is
generally regarded as the theoretical fount of Kant's theory of natural rights, providing the
analytical link between Kant's moral philosophy and his political and legal theory. The author
argues that this view is erroneous: The notion of autonomy ultimately remains content less and
incapable of providing practical political and legal prescriptions without Kant's substantive
account of human nature, an account specifying both the proper moral ends that humans should
strive for and the anthropological limits of human perfectibility. Kant's theory of rights is informed
by both sets of considerations. Contrary to the received view, Kant develops a socially sensitive
account of the self in his later writings, and comes to believe that individual autonomy depends
in large measure on the realization of certain propitious sociocultural and political arrangements.
For Kant, natural rights, like individual freedom, are not ahistorical, universal standards of
political justice but the historical outcome of the long process of enlightenment. As such, what is
right will depend on what is timely. Here Kant is much closer to Fichte and Hegel than is
generally acknowledged.

Learning Outcomes:

1. Understand and articulate the rights theory;

2. Differentiate a legal and a moral right;
3. Critique virtue ethics; and
4. Make use of the rights theory.
Discussion
Kant, unlike Mill, believed that certain types of actions (including murder, theft, and lying)
were absolutely prohibited, even in cases where the action would bring about more happiness
than the alternative.  For Kantians, there are two questions that we must ask ourselves
whenever we decide to act:  (i) Can I rationally will that everyone act as I propose to act?  If the
answer is no, then we must not perform the action.  (ii)  Does my action respect the goals of
human beings rather than merely using them for my own purposes?  Again, if the answer is no,
then we must not perform the action.  (Kant believed that these questions were equivalent).

Kant’s theory is an example of a deontological moral theory–according to these

theories, the rightness or wrongness of actions does not depend on their consequences but on
whether they fulfill our duty.

 
Kant believed that there was a supreme principle of morality, and he referred to it
as The Categorical Imperative.  The CI determines what our moral duties are.of 
Morality and imperatives:  What does it mean for one's duty to be determined by the
categorical imperative?

What is an imperative?  An imperative is a command.  So, "Pay your taxes!" is an

imperative, as are "Stop kicking me!" and "Don't kill animals!"

Hypothetical Imperatives:  these imperatives command conditionally on your having a

relevant desire.  E.g. “If you want to go to medical school, study biology in college.”  If
you don’t want to go to medical school, this command doesn’t apply to you.  Another
example, your father says, "if you are hungry, then go eat something!" - if you aren't
hungry, then you are free to ignore the command.

Categorical Imperatives:  These command unconditionally.  E.g. “Don’t cheat on your

taxes.”  Even if you want to cheat and doing so would serve your interests, you may not
cheat.
 
What is the connection between morality and categorical imperatives?  Morality
must be based on the categorical imperative because morality is such that you are
commanded by it, and is such that you cannot opt out of it or claim that it does not apply
to you.

How does the categorical imperative work?  The categorical imperative has three
different formulations.  That is to say, there are three different ways of saying what it is.  Kant
claims that all three do in fact say the same thing, but it is currently disputed whether this is
true.  The second formulation is the easiest to understand, but the first one is most clearly a
categorical imperative.  Here is the first formulation.
1) First formulation (The Formula of Universal Law):  "Act only on that maxim through which you
can at the same time will that it should become a universal law [of nature]."
a) What is a maxim?  A maxim is the rule or principle on which you act.  For example, I might
make it my maxim to give at least as much to charity each year as I spend on eating out, or I
might make it my maxim only to do what will benefit some member of my family.

b) Basic idea:  The command states, crudely, that you are not allowed to do
anything yourself that you would not be willing to allow everyone else to do as
well.  You are not allowed to make exceptions for yourself.  For example, if you
expect other people to keep their promises, then you are obligated to keep your
own promises.

c) More detail:  More accurately, it commands that every maxim you act on must
be such that you are willing to make it the case that everyone always act on that
maxim when in a similar situation.  For example, if I wanted to lie to get
something I wanted, I would have to be willing to make it the case that everyone
always lied to get what they wanted - but if this were to happen no one would
ever believe you, so the lie would not work and you would not get what you
wanted.  So, if you willed that such a maxim (of lying) should become a universal
law, then you would thwart your goal - thus, it is impermissible to lie, according to
the categorical imperative.  It is impermissible because the only way to lie is to
make an exception for yourself.

Kant on Moral Worth

The Moral Worth of Persons:  Kant also has something to say about what makes someone a
good person.  Keep in mind that Kant intends this to go along with the rest of his theory, and
what one's duty is would be determined by the categorical imperative.  However, one can treat
this as a separate theory to some extent, and consider that one's duty is determined by some
other standard.  Keep in mind that what is said below has to do with how one evaluates people,
not actions.  A person's actions are right or wrong, a person is morally worthy or lacks moral
worth (i.e., is morally base).  A person's actions determine her moral worth, but there is more to
this than merely seeing if the actions are right or wrong.

a) Background concepts:  This chart should help explain the basics.

Our Perfect duties (duties of justice) are negative in that they require that
we never perform certain types of actions, and can only be fulfilled in very specific ways.
 
-Our Imperfect duties (duties of virtue) are positive in that they require that
we sometimes perform certain types of actions.
 
Illustration:  We have a perfect duty not to murder.  This means that we must never murder
under any circumstances.  We have an imperfect duty to help the needy.  This means that we
should do so on occasion, where this does not conflict with our perfect duties.
Examples:
 
Duties                        Perfect                                               Imperfect
 
To Others             tell truth                                               assist others in need
don’t break promises                        help others achieve goals
                           don’t steal, murder, enslave
 
To Self           no suicide or             
develop talents
                              other forms of self-destruction

b) The basic idea:  Kant argues that a person is good or bad depending on the
motivation of their actions and not on the goodness of the consequences of those
actions.  By "motivation" I mean what caused you to do the action (i.e., your reason for
doing it).  Kant argues that one can have moral worth (i.e., be a good person) only if one
is motivated by morality.  In other words, if a person's emotions or desires cause them to
do something, then that action cannot give them moral worth.  This may sound odd, but
there is good reason to agree with Kant.

c) Why motivation is what matters:  Imagine that I win the lottery and I'm wondering
what to do with the money.  I look around for what would be the most fun to do with it: 
buy a yacht, travel in first class around the world, get that knee operation, etc..  I decide
that what would be really fun is to give the money to charity and to enjoy that special
feeling you get from making people happy, so I give all my lottery money away. 
According to Kant, I am not a morally worthy person because I did this, after all I just did
whatever I thought would be the most fun and there is nothing admirable about such a
selfish pursuit.  It was just lucky for those charities that I thought giving away money was
fun.  Moral worth only comes when you do something because you know that it is your
duty and you would do it regardless of whether you liked it.

d) Why consequences don't matter:  A reason why Kant is not concerned with
consequences can be seen in the following example.  Imagine two people out together
drinking at a bar late one night, and each of them decides to drive home very drunk. 
They drive in different directions through the middle of nowhere.  One of them
encounters no one on the road, and so gets home without incident regardless of totally
reckless driving.  The other drunk is not so lucky and encounters someone walking at
night, and kills the pedestrian with the car.  Kant would argue that based on these
actions both drunks are equally bad, and the fact that one person got lucky does not
make them any better than the other drunk.  After all, they both made the same choices,
and nothing within either one's control had anything to do with the difference in their
 actions.  The same reasoning applies to people who act for the right reasons.  If both
people act for the right reasons, then both are morally worthy, even if the actions of one
of them happen to lead to bad consequences by bad luck.

e) The wrong interpretation:  Consider the case described above about the lottery
winner giving to charity.  Imagine that he gives to a charity and he intends to save
hundreds of starving children in a remote village.  The food arrives in the village but a
group of rebels finds out that they have food, and they come to steal the food and end
up killing all the children in the village and the adults too.  The intended consequence of
feeding starving children was good, and the actual consequences were bad.  Kant is not
saying that we should look at the intended consequences in order to make a moral
evaluation.  Kant is claiming that regardless of intended or actual consequences, moral
worth is properly assessed by looking at the motivation of the action, which may be
selfish even if the intended consequences are good.

f) Kant does not forbid happiness:  A careful reader may notice that in the example
above one of the selfish person's intended consequences is to make himself happy, and
so it might seem to be that intended consequences do matter.  One might think Kant is
claiming that if one of my intentions is to make myself happy, that my action is not
worthy.  This is a mistake.  The consequence of making myself happy is a good
consequence, even according to Kant.  Kant clearly thinks that people being happy is a
good thing.  There is nothing wrong with doing something with an intended consequence
of making yourself happy, that is not selfishness.  You can get moral worth doing things
that you enjoy, but the reason you are doing them cannot be that you enjoy them, the
reason must be that they are required by duty.  Also, there is a tendency to think that
Kant says it is always wrong to do something that just causes your own happiness, like
buying an ice cream cone.  This is not the case.  Kant thinks that you ought to do things
to make yourself happy as long as you make sure that they are not immoral (i.e.,
contrary to duty), and that you would refrain from doing them if they were immoral. 
Getting ice cream is not immoral, and so you can go ahead and do it.  Doing it will not
make you a morally worthy person, but it won't make you a bad person either.  Many
actions which are permissible but not required by duty are neutral in this way.

g) Summary:  According to Kant a good person is someone who always does their duty
because it is their duty.  It is fine if they enjoy doing it, but it must be the case that they
would do it even if they did not enjoy it.  The overall theme is that to be a good person
you must be good for goodness sake.

According to him, perfect duties (duties of justice) can appropriately be enforced

by means of the public, juridical use of coercion, and the remainder are imperfect duties
(duties of virtue), which are fit subjects for moral assessment but not coercion

Assessment
 1. Quiz: Question/s: What is the difference between the rights and virtues theories?

2. Analysis in class of a case highlighting why the option taken by the agent may be
legal but not moral.

References

Kant, Immanuel, :Categorical Imperative”. In Groundwork of the Metaphysics of Morals,

translated by H.J. Paton, 162-76. New York: Harper and Row Publishers Inc., 1964