Natural Law: The Theory
Some time ago, the country Grecolandia elected Mick
Chaynee in its general election as its new president.
After a few years, and another election for some members
of its parliamentary, President Chaynee amassed for
himself great political power, to almost total control of
all three branches of government. In a few subsequent
years, President Chaynee began to pass laws which
restricted people’s lives severely. One of those laws
made it clear that if anyone were to protest President
Chaynee’s government, he would simply force them to
accompany him on a hunt, in which they would
unfortunately become the hunted. Shortly thereafter,
nobody would openly protest or criticize Chaynee’s
government out of fear of being shot in the face.
However, Chaynee eventually got word that people were
still criticizing him; only this time he was unsure of
who was doing it. So in order to compel people to come
forward and give the names of those who were breaking the
law, Chaynee decided to have another law passed in which
it made it illegal to even withhold the names of those
who privately criticized his government.
After several years of people abiding by the law and
turning neighbors, family members and even enemies in,
the country began to fall into economic crises. President
Chaynee had squandered away most of the country’s
resources into his failing state-owned energy company
NOERN. Neighboring country Scarcellaland, and its
precocious leader King Scarcella, invaded and liberated
the citizens of Grecolandia from its evil tyrant leader.
Afterword, the new government of Grecolandia began to
have trials in order to prosecute the evils which had
previously taken place there. Those who were being tried
protested (ironically) in outrage. “Why are we being
tried for having followed the law that was established by
our ruler?” they would ask. “Because you should have
known better! Those cruel laws should not have been
followed” the prosecutors would rejoin.
This fictionalized story is not beyond all possibilities
of occurring. In fact, the history of Nazi Germany, and
the subsequent Nuremburg trials can both attest to a
similar situation. Among some of the legal and
philosophical theories that might address this issue,
natural law is one of the most historic. Natural law asks
the question; would such a law that is morally
reprehensible require one to act in accordance with it?
There are other examples even closer to home. In the
United States, the question of slavery was a major issue
which divided the nation and became a major component
which led to a civil war. Also, when considering the Dred
Scott Case, this same nation looked at the deprivation of
rights for those of African descent.
Are there moral norms, somehow connected with the human
person, which not even the Supreme Court of the United
States is able to deny? Various justices of the Supreme
Court have toyed around with this issue (for example:
Justice Samuel Chase in Calder v Bull and Justice William
Johnson in Fletcher v Peck). Even amongst our current
Supreme Court, Justice Clarence Thomas has acknowledged
admiration with this theory. Is there an obligation to
obey the law only if it is moral? While other legal and
ethical theories also address this issue, this paper will
focus on the Natural Law approach.
We will summarize the history of natural law, bearing in
mind that there are multiple approaches and variant
theories of natural law itself. While we will spend a
considerable amount of space on the historical view of
natural law, I consider this important because in this
way we can see how the theory has played itself out in
the evolutionary thought of man. The various components
of natural law theory will be looked at in this way so
that the context of the theory itself might be better
understood. We will then consider a particular conceptual
definition of natural law, and look at some of the
arguments made against some of its components.
A few considerations need to be made clear from the
start. The first thing is that there are multiple
theories and variants of natural law. It is practically
impossible to address each and every one of these in this
paper. Secondly, there is much more detail involved in
the natural law theory that it is conceptually difficult
to cram it all into twenty or so double-spaced pages
(even if I avoid using the two inch margins that I wanted
to use). Thirdly, the arguments I will use against the
natural law theory are those basic arguments which
certainly always come up. I will raise them in their most
basic form, and answer them accordingly. It is not my
intention to be an apologist for the natural law theory;
so with that said, I hope that I will not create any
caricatures of either the theory itself, or those
arguments raised against it. My goal is to educate myself
about the issues involved, and display my knowledge and
understanding of the issues in this paper, adding my own
personal reflection along the way.
In the Declaration of Independence, Thomas Jefferson
wrote regarding man that man has certain unalienable
rights; and among these are life, liberty, and the
pursuit of happiness. Momentarily placing my patriotism
aside, I can easily recognize that Jefferson was not the
first one to come up with the idea of a ‘right’ that is
unalienable. Natural law followers have been claiming
this idea for quite some time now, and they point all the
way back to the playwright Sophocles as being one of the
first to acknowledge the principles of their theory.
During the 5th Century B.C.E., in the third of the Theban
plays commonly titled Antigone, natural lawyers point to
a course of action taken by Antigone, and the subsequent
arguments used by her, as a clear reflection of the
natural law. Antigone was both the daughter and sister of
Oedipus the King (for some reason I’m reminded here of
the movie Deliverance). After Oedipus had died, a civil
war took place in which his two sons, which are also her
brothers (or nephews I guess), Polynices and Eteocles,
died while fighting on opposing sides. Oedipus’ brother
Creon, who became master of the city, passed a law which
would basically prohibit the burial of Polynices due to
him fighting against Creon. Anyone who gave Polynices
burial rights was subject to the death penalty. Antigone
was grieved by this, and she made her displeasure known
to her sister Ismene and sought her help to bury
Polynices.
Antigone posed what one might have perceived to be a
dilemma between her obligations to follow the laws of
Thebes, which were enacted by a legitimate ruler, or
follow the laws of god, who required burial rights.
According to her, the decision was already made. Both the
god and therefore justice commanded it, period. How could
she follow the laws of a mere man when the unwritten and
unalterable laws of god commanded burial? Therefore,
Antigone was convinced of with whom her primary
obligation resided, and without the aid of Ismene she
went out and buried her brother Polynices. Possibly
because of Antigone’s engagement with Creon’s son Haemon,
and by virtue of his pleading on her behalf, Creon offers
Antigone two options as an out due to her illegal
activity. She could either deny knowing the law (this
never works for a speeding ticket by the way), or say
that she misunderstood the law (neither does this).
Antigone rejects both options, saying that the laws of
god supersede any law of Creon’s. Well Creon wasn’t too
pleased with Antigone’s moral lecture, and so she soon
found herself buried alive in a box.
According to the natural lawyers, we see in the story of
Antigone two legal considerations; one would be legal
positivism, and the other natural law. According to
Antigone there is an unwritten law in which written laws
must act in accordance with. When I considered this play,
it seemed to me that the natural lawyers were taking as
an example something which would fit better with the
Divine Command Theory, and not so much with the natural
law theory. I thought that Antigone was clearly making an
appeal to the dictates of god. I am certain that not all
burial rites during this time were the same. So what
distinguished this particular burial rite from any other
which entitled it to be considered as part of the natural
law?
After further consideration of the fact that natural law
is supposed to be unchanging and eternal, I thought of
all the differing ways in which people have dealt with
their dead. There are a plethora of differing customs
(recently Disney World has been dealing with folks
tossing Granny’s ash-remains over her favorite ride), and
every culture has some sort of burial rite. But what does
this mean, and how does it address the issue? Besides,
during Antigone’s defense she specifically made reference
to the divine law. Howard Kainz states in his book that,
“In ancient philosophy natural law was often referred to
as divine law. In medieval era, the divine law becomes
more closely associated with Revelation, and becomes
distinguished from natural law” (Kainz, 2). Even so,
there was no clear distinction made in Antigone because
she directly appealed to the Divine. In my estimation,
while there are some similarities between Antigone’s
apologia and the natural law theory, there is a closer
connection between her story and the Divine Command
theory. However, the idea remains that there must be some
type of standard in which we could evaluate the
legitimacy of human laws without engaging in some endless
tautology.
Later on, we find the Sophists who did not believe in the
existence of any kind of universal objective standard.
They had experienced way too many customs to fall trap
into a mindset of a world that was simply black and
white. The philosopher Plato adamantly disagreed with
them. While Plato did not develop a theory of natural
law, he did contribute to its understanding in a variety
of ways. Specifically, in his philosophical system we
encounter numerous ideas which help in defining some of
the concepts used in the natural law system, as well as
the fact that his ideas were further compounded on by
future natural lawyers. For this reason it is vital that
his theories be mentioned here.
When we consider Plato’s idea of the Republic, we see
that one of his chief concerns was the issue of justice
and how man’s social ordering would be established in
light of it. In this way we see Plato appealing to
universal standards, and conceptions of abstract entities
which ideally would order all things towards justice and
which manifest the character of eternal validity. One
such appeal would be Plato’s Theory of the Forms. In this
theory, every entity in existence manifests some
participation in a universal form of which it reflects,
although in an imperfect manner. Take for an example the
computer on your desk, you know, the
three-year-old-now-obsolete one. That computer
participates in the form of a perfect computer. In a
similar fashion, all human beings also participate in a
universal form of human nature, again albeit imperfectly.
However, it is the end goal that as humans we reflect the
form as perfectly as possible. The forms themselves are
eternal and are not subject to change. What we should
derive from this is that in order to reflect the forms we
need to act in such a way that we are driven towards
them, and not away from them. Certain human acts lead to
what is called human flourishing, that is achieving the
purpose or end set out for the moral agent. The agent is
to engage in those kinds of actions, the ones which lead
to human flourishing and away from destruction. This is
how we describe the virtuous life; that is, living one’s
life with arête.
Plato gives us the Allegory of the Cave as an example of
how this process would work on what would be a
metaphysical level. In the allegory, the agent makes his
way out of the world of shadows in which a false
perception of reality is presented to him, and into the
sunlight with which he is able to discover the true
reality of things. Plato aptly labels the sunlight as the
form of the good. This form is the ultimate form, for by
virtue of it all the other forms are made known and can
find their reflection in it. We could say that as every
computer participates in its form, and every human in its
form, so too does every good act participate in the form
of the good. As humans we are to participate in this
good. In order to participate in the good, we need to
live a virtuous life. Plato refers to the virtuous life
as one where the soul is ordered by justice. Here he
distinguishes the soul into three parts; the appetites,
the spirit and the mind. Each part has a particular
virtue which it must engage in so as to order it towards
justice. The appetites need the virtue of self-control,
the spirit needs the virtue of courage, and the mind
needs the virtue of wisdom. Each part of the soul must
display these virtues in order for the soul to flourish
and attain happiness, which ultimately consists in
attaining the good. As such we see a harmonious
well-ordered human life lived in virtue. This is what
natural law is concerned with; i.e. human flourishing. An
interesting note to all of this is that Plato was
cautious with the idea of observing human nature, for he
felt that sense-perception is deceptive, and only by
contemplating the universal forms could we come to gain
true knowledge. Even so, his ideas concerning human
flourishing, virtue, and a universal objectively known
reality all made some important contributions to the
natural law theory.
Plato’s pupil Aristotle on the other hand, while not
formulating a natural law theory in itself, has
contributed many of the particular principles which we
find in the theory. Particularly we find some of the main
principles of natural law theory in his work concerning
human nature and its teleological ends, as well as his
ideas concerning virtue and natural justice. Aristotle
believed that nature manifests itself intelligibly, and
as such it has a particular order to it. All within
nature is geared towards its particular end. We see that
perfection in the natural order is attained by the
accomplishment of these ends. We can judge human acts in
light of how they correspond to the agent’s teleological
end, which is found in nature via man’s rational
faculties. Human acts are considered right or wrong
depending on whether they lead to the flourishing of the
moral agent. Humans are rational animals, and every human
aims to his end, which consists in the agent achieving
happiness. The attainment of happiness is the purpose for
the rational human being’s existence, and this is reveled
in the human being’s natural teleology. Happiness is
universal, and it is only attained by the human being by
living his life according to reason.
Aristotle did not isolate humans as being the only
entities with a teleological nature. He believed that
everything and everyone was aimed at some end found in
its nature. Each and every human act, by having a
teleological end from which it derives its purpose, is
aimed at achieving the true end of the agent, which is
the good. The good is the purpose for both the agent and
his actions. However, Aristotle was careful to
distinguish between what we can conceptually call ‘real
goods’ from ‘apparent goods.’ We call real goods those
goods which actually perfect the agent, and fulfill the
purpose of both the action and the agent.
The agent does not always engage in actions that bring
about his fulfillment. The development of the agent’s
rational faculties can help him to distinguish between
those actions which bring about his fulfillment from
those which do not. Virtue as well helps the agent to
engage in those actions which are directed to his
fulfillment. For example, my immediate end in writing
this paper is to develop an understanding of the natural
law theory. There is also a further end sought in my
desire to acquire credits for graduation. Then, there is
a further end sought in going to law school. What makes
this paper a good one is if it achieves its desired
intelligibility, and therefore achieves its purpose,
which is the end for which it seeks. There are also a
variety of immediate ends which are desired for their own
sake. For example, I have a desire to learn the material.
There are multiple immediate ends, and happiness is the
ultimate good in itself.
The good, happiness, is the measure of all things and one
can attain this only by living a virtuous life.
Therefore, happiness as being the good is not equal to
all of the other immediate ends. All of the human actions
done in virtue constitute happiness. Knowledge of one’s
teleological end, and the particular end of an act,
enables that person to discern the act’s moral standing;
and this requires the rational faculty.
The rational faculty according to Aristotle is found only
in humans. The rational faculty is a tool to be used for
the moral agent’s discernment. This separates humans from
other animals and plant life. Aristotle described three
types of souls which are found in nature, each
corresponding to its particular level of activity. There
is the vegetative soul, whose level of activity resides
in its ability to grow; however, the vegetative soul is
deprived of the higher activity of locomotion which we
find in the sensitive soul, but the sensitive soul lacks
the higher activity of rational thought which we find in
the rational soul. According to Aristotle, only humans
manifest this higher level of activity; as such, humans
can uniquely know the laws of nature and what their
teleological ends are.
Aristotle observed human nature, and he concluded that
the nature of human beings requires them to live in a
society. He then distinguished the different laws which
guided both man and society. Aristotle divided justice
into natural justice and a legal justice. I understood
that natural justice could be considered similar to
natural law in the sense that it is both universal and
also applied the same way across all cultures and
societies. Legal justice on the other hand could be
considered as not being universal, but changeable
depending upon the demands of that particular society;
for example, how much you should pay for a speeding
ticket as a fine. We see here that the two types of laws
can be divided between those which are peculiar to a
particular society, from those which apply everywhere and
all of the time in a universal manner. Those laws which
are peculiar to that particular society do not
necessarily need to be written in order to distinguish
them from those universal, unchanging laws. They could
simply be customs as well.
Aristotle appeals to the idea of a universal law in his
work the Rhetoric. It is here that he makes reference to
Antigone’s argument of a universal law derived or given
by the gods as a means of arguing against a particular
non-universal law. It was argued that what Antigone did
was supported by nature. Aristotle also believed that
there is a universal natural justice which justified her
act. This universal law is natural and supersedes other
laws. One great side note to all of this is that the
purpose of the Rhetoric was to develop possible arguments
to be used by attorneys. According to Kainz, it is
possible that Aristotle did not actually hold to this
position, but was merely supplying attorneys with a guide
in how to effectively persuade others (Kainz, 5).
However, I believe that if we follow Aristotle’s other
relevant teachings we will find that many of the
principles which he establishes clearly are relevant to
the teachings of the natural law theory and in fact
support the theory. In particular, we see support for the
natural law theory in Aristotle’s account of the
teleology of human nature and man’s natural end being
found in his acquiring happiness. Aristotle clearly
taught that all of this applies to everyone, and in every
age.
While neither Plato nor Aristotle specifically
articulated the natural law theory, the Stoics, and
particularly the Roman Stoic Marcus Tullius Cicero in
fact did. The Stoics held the rational faculties in high
regard. They held that through the rational capacities
man could understand how he relates to the natural order,
and how that order is composited of laws which structure
all in existence. As a follower of the Stoics, Cicero’s
articulation of the natural law theory very much
coincides with the theory as it is held today. Concerning
natural law, and through the voice of Laelius in Cicero’s
Republic, Cicero stated:
There is in fact a true law-namely, right reason-which is
in accordance with nature, applies to all men, and is
unchangeable and eternal. By its commands this law
summons men to the performance of their duties; by its
prohibitions it restrains them from doing wrong. Its
commands and prohibitions always influence good men, but
are without effect upon the bad. To invalidate this law
by human legislation is never morally right, nor is it
permissible ever to restrict its operation, and to annul
it wholly is impossible. Neither the senate nor the
people can absolve us from our obligation to obey this
law, and it requires no Sextus Aelius to expound and
interpret it. It will not lay down one rule at Rome and
another at Athens, nor will it be one rule today and
another tomorrow. But there will be one law, eternal and
unchangeable, binding at all times upon all peoples; and
there will be, as it were, one common master and ruler of
men, namely God, who is the author of this law, its
interpreter, and its sponsor. The man who will not obey
it will abandon his better self, and, in denying the true
nature of a man, will thereby suffer the severest of
penalties, though he has escaped all the other
consequences which men call punishment (Cicero’s Republic
Chapter XXII as quoted from Steinberger, 455).
The above quote offers us some important insights into
the theory of natural law. Here we see that according to
Cicero the “true law” has the qualities of universality
in that it will not change and is not subject to the
whims of man and his fallible legislature, but it is
eternal in the sense that God is the author, interpreter,
and master of this law. This law can be known by all
people, provided that they use their rational faculties.
The law is not bound by customs and cultures, for it
transcends these and directs us toward our teleological
ends. This law is in contrast to the laws of man which
must not contradict them. There is absolutely nothing man
can do to make these laws null and void.
Thomas Aquinas, who is the most influential natural law
theorist by far, has developed a theory of natural law
not too unlike that of Cicero. His theory might have been
propelled up to the top as being one of the, if not
the theory that most people understand as
natural law due to his influence in the theological
system still in use in the Roman Catholic Church. This
becomes even more interesting when we are confronted with
the fact that Aquinas uses very little space in his Summa
Theologiae to discuss the natural law theory in his
Treatise on Law. Aquinas makes the theory’s theological
connection when he defines natural law as being the
rational creature’s participation in the eternal law.
Aquinas gives us four senses of law. They are: the
eternal law, that which is the most important in
the sense that it establishes the natural law; the
divine law, that which Scripture has revealed as
being a certain aspect of natural law; the
civil
law, in order for this law to be valid it should
incorporate natural law and it must not go against it;
and then there is
natural law, this is the
rational soul’s participation in the eternal law, and it
instructs people towards their teleological ends.
Aquinas taught that we can know the natural law by
appealing to our reasoning faculties in order to consider
those things which lead to human flourishing. Our
capacity to reason is considered to be an
a
priori action, as such we can know the good;
however, in order to know the good, we must know our
nature and our teleological ends. For Aquinas this is not
something applicable to only certain individuals.
Instead, all human beings are endowed with natural
inclinations. It is after gaining knowledge of those
inclinations that one can determine which course of
action to pursue. Reason is the faculty which operates
the manner in which the moral agent can gain the
knowledge to be used in discovering that which will lead
to human flourishing. Aquinas calls it the natural light
of reason and it is ultimately supplied by God for our
common good, and for that reason it is a universal
faculty.
There are certain precepts of Aquinas’ natural law theory
which should be observed. Mainly, we are to do good and
avoid evil. This precept molds all of the other precepts.
This is an intuitive concept because if we do good and
avoid evil then our actions will lead us towards human
flourishing. Reason helps us in this pursuit, and through
it we can determine which course of action avails the
moral agent in his life quest, which should ultimately
find its fulfillment in God, which Aquinas believes is
the true and final good. As such, we are able to
determine those things which lead to flourishing from
those which do not. Our natural inclinations are all of
them considered to be good and worthy of pursuit. We
should be able to make the necessary distinction between
those apparent goods from the real thing. I understand
apparent good in its most extreme form, like what had
happened to the idiot who wanted to get drunk but didn’t
have any alcohol. What he ended up doing was he took
gasoline and mixed it with milk and drank it. I’m sure he
felt some type of buzz before he died. In that case, he
took what appeared to him to be a good, and a good means
to do it with; i.e. getting drunk with gasoline and a
lactose chaser, and ended up destroying himself! To such
go the prestigious Darwin Awards.
Aquinas would argue that these people are not simply
mental-midgets. Instead, he would argue that they lack
virtue. The virtues, to which he adds faith, hope, and
love, help form the moral agent. By acting virtuously,
the moral agent aims towards the good, and is reasonable
by abiding by the general precepts of the natural law;
those things which are forever good, which lead to human
flourishing and not to a highly combustible corpus.
Aquinas believes that the virtues are necessary because
without them natural law is reduced to nothing more than
a duty-based ethic which does not adequately acknowledge
the diversity and complexity of human nature and its
relationship with both the Divine and with mankind in
general. The virtues give life to the general precepts of
natural law. Aquinas describes acts of virtue as one
acting according to reason. Obviously you could not act
contrary to reason (as the Darwin Awards guy), and yet be
acting virtuously. However, what about those people who
had died as martyrs for their faith, or those who
sacrificed themselves for their family? I assume that
Aquinas, as a Roman Catholic, was well aware of the
Christian martyrs of the first few centuries. Is it
virtuous to knowingly allow your life to be destroyed by
an unjust aggressor when you could escape such harm?
Would that be acting according to reason?
Aquinas defines some of the natural inclinations we find
in mankind. Among these are: self-preservation, sexual
intercourse, education of offspring, and an inclination
towards the good. If the natural inclinations are
something that the moral agent is to follow, then
passively allowing for their destruction should not be
considered virtuous. However, even Socrates sought a
greater good or perceived greater virtue in allowing
himself to be destroyed for the cause of the state; even
if the charges against him were false. I’m sure that
Aquinas would likewise point out that self-preservation
should not be construed in the Ayn Rand sense of
‘self-interest.’ Like Aristotle, Aquinas considered
humans as being social animals. As such, our flourishing
can only take place within that context. We are not, nor
can we be isolated individuals without some type of
social connection. Also, Aquinas considered faith, hope,
and love as being virtues. Moreover, these virtues are
specifically given a theological context in which we are
subjected to our Creator who is the proper owner of our
lives for which we are simply custodians.
Aquinas’ theory of natural law manifests an apparent
theological structure. Like Cicero, Aquinas’ ultimate
appeal for his theory’s legitimacy and authority finds
its basis in God. However, there are some natural lawyers
who ask us to isolate the divine from the theory. Hugo
Grotius for instance tells us that even if God did not
exist, humanity requires itself to live in a society
which has certain social demands which prohibit
manifestations of pure self-interest at the expense of
others. Imagine a world where everyone was permitted to
lie. Absolutely no confidence could be established in
order to pursue the common good. In fact, if we mentally
construct such a society, I seriously doubt that it would
survive. Aquinas defined law as being that which aims for
the common good, and established by the proper authority.
If we do isolate the divine from the theory, does
Aquinas’ theory fall into what G. E. Moore has
established as the “naturalistic fallacy?”
The naturalistic fallacy has been the product of G.E.
Moore’s inquiry into what the definition of the good is,
and how it is to be defined. For Moore, the naturalistic
fallacy results when we confuse a thing’s natural
property with its moral property. Similarly, when we
consider Hume’s argument that simply because a thing is a
certain way, or does a certain thing, it does not follow
that it ought to be that way, or do that thing. My
ability to describe how a thing acts must not become a
prescription for its action. Our capacity to reason only
enables us to determine what is true from what is false,
not what is moral, which instead derives from that which
resides in our passions. What we end up doing here is
confusing facts of nature with how they should be valued.
Therefore, we perceive that entities have a particular
telos to which they are aimed, and it is reckless to do
such a thing. The theory also makes an important appeal
to God, which many people are not too keen on accepting.
This fact makes it hard for natural lawyers to promote
their theory. How does God play into the theory?
If we go back to the quote from Cicero, the context of
his comments seem to me to imply that because the law is
eternal, and unchanging, and that God is the author and
interpreter of this law, God too might not change.
However, I am not prepared to totally accept that Cicero
would assert this of God. The text itself does not state
whether Cicero’s God will change or is capable of
changing, only that this “true law” is unchangeable. I am
wondering how Cicero could be so certain that the law
would not change if indeed his God, who he acknowledges
as the author, ruler, master, and interpreter of the
“true law”, could actually change. What would prohibit
God, as author, editing the law that he established? Is
the law “true” because God declares that it is true, or
does God declare that it is true because it is? As
Socrates had pointed out, either way we answer this,
further questions concerning its validity become
apparent.
We know from reviewing the history of religions that
there are many religious believers who had worship a God
who is fickle. These gods change their commands all the
time. If we were to posit that Cicero’s God is capable
for change, then the law could be subject to change as
well. Cicero would not really be appealing to a natural
law theory in this case, but a divine command theory.
When Cicero calls God the author and interpreter of the
law, and God changes, then the law becomes whatever God
says that it is. However, this does not fit the context
of Cicero’s statements. Cicero clearly stated that the
law is unchangeable and eternal. If it is eternal, and
God is the author, then God’s declaration is eternal and
not subject to change. So whether or not God does change,
in respect to this “true law,” the law itself will not
change. So at minimum we could assume that God himself is
bound to his creation founded in the law which he
established.
Cicero stated that the “true law” is right reason in
accordance with nature. We can have knowledge of the law
through our rational faculties. Because our capacity for
reason enables us to be guided towards right action, we
must avoid doing anything contrary to right reason. Our
reflections upon the universal laws of human nature help
guide us. Moreover, we can determine through our
reflection on our nature which actions are in accordance
with justice and which ones are not. We can have
knowledge of which actions lead to preservation of our
species and ourselves, and therefore justice demands that
we should live life accordingly.
If we back-track a bit here and consider our previous
discussion about Cicero’s God; that is if he indeed were
a God that changed and subsequently changed the law; if
our knowledge of the law was intimately linked with our
faculties for reason, why could we not conclude by
appealing to Descartes that it is possible that this God
is indeed an evil genius who manipulates our rational
thought in ways in which we are no longer certain that
2+2=4 for instance (as we have seen the public schools
struggle with)? How would we know the difference? If God
manipulates our minds so that we would all be in
conformity with what we perceived to be the universal
law--however it is now changed—but then again it is
continuing to be a universal law, would we not be unaware
of the fact that God did change? Instead as far as we
were aware, we would believe that our prior use of our
rational faculties was faulty. If this were the case,
then how would the natural law theory be any better than
a deontological Kantian duty-based ethics? At least with
duty-based ethics, and the Categorical Imperative, we
could have a set of rules to follow; for example, never
treat someone simply as a means to an end, but always as
an end in themselves. However, this also carries its
drawbacks. Who does this rule apply to? Does it apply to
persons? What is the definition of a person?
As we see in our own United States history, those of
African descent were not considered to be fully human
and/or be able to attain full personhood. So this duty
did not apply to how they were treated. Currently,
embryos both within and outside the womb do not contain
the legal status (or as some would also argue the moral
status) of a person; therefore, the rights afforded to
persons do not apply to embryos. However, there is a
large population who do consider embryos as having the
moral status of personhood, even though they do not
display the actual commonly accepted characteristics of
personhood, i.e. rational thought, but instead they have
the inherent potential for rational thought via their
association with the species homo sapiens, even though
that capacity might not ever come to actual fruition. As
such this group would argue that the duty should also
apply to embryos. So, as duty-based ethicists, what do we
do? Do we gather in committee and take a vote on how we
define the particularities of the duty and to whom they
would apply?
Natural law does not make it any easier when we observe
its history. Feminists have rightly pointed out that
natural law theory has been used (or abused as the
natural lawyers would put it) in allowing for the
subjugation of women and as a justification for the
ownership of slaves. If we could somehow distinguish
people naturally and create a second class citizenry,
would that not be in line with natural law theory? What
happens when we later found out that it wasn’t an evil
genius who had scrambled our minds, but in fact we had
faulty scientific knowledge that prompted us to abuse
those who were in fact naturally undeserving of that
abuse? We have seen this with both Aristotle and Aquinas.
Aristotle, for instance, in recalling his conception of
the intellectual faculty of the soul, he declared that
for slaves the faculty was not present, for women it did
not operate, and for children it has yet to develop. He
had deprived well over half the population (except for
present China I guess). Aquinas had also discerned
through faulty scientific knowledge that quickening for
male fetuses happened much earlier than females. In both
cases the science was obviously wrong, so how do we go
about fixing our ethical system of natural law when we
later become aware that a certain belief was based upon
an inadequate reflection of nature? Some would argue back
that the natural law theory is still standing, and
inherently sound, despite how it has been misused in the
past; that the reality it that the argument for freeing
the slaves was based within the natural law theory. Even
Martin Luther King Jr. made an appeal to the natural law
in his letters from the Birmingham jail.
In conclusion, as technology advances we see the contrast
in how primitive man was more subjected to nature in his
time than modern man is in the present time. How does
this fact confront a natural lawyer? Today new ethical
issues approach the lawyer and the politician; as well as
the doctor and the parent. There are debates currently
taking place in modern healthcare ethics regarding the
conception of life and what can ethically be done in its
beginnings. We see the debate surrounding embryonic
stem-cell research, in-vitro fertilization, a plethora of
different combinations resulting in some type of
surrogacy and questions regarding who has rights to the
child. We are even witnessing the invention of an
artificial womb and all of the possible psychological
issues which could potentially result from the lack of
human via human contact in the womb. With advances in
modern technology, is an appeal to a natural law ethic
nothing more than nostalgic exasperation for the archaic
past, or is natural law theory the best safeguard from
falling helplessly down a dangerous slippery-slope?
Alexander Vincent Greco 2007
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