Why are we interested in natural law today or still today? Why is the topic of human nature and of natural law still relevant? Of course thanks to the great influence of biology, evolutionary biology, neuroethics on our idea of man, but primarily because, in the first place “speaking very generally, without descending into the details of tough or perplexing cases, everyone knows that human contracts and statutes cannot create truly binding obligations just by the fact of a contractual agreement, or by the mere fact of a command having been issued by a government official”. We may always criticize obligations and found human rights on the basis of natural law. We might speak today, in particular, of the topic of human rights that seems to require a strong anthropology. But as Russell Hittinger holds “Never was a culture more dependent upon arguments about natural law and natural rights while having such meagre epistemological, moral, and political resources sufficient for reaching a consensus about these things”.Footnote 1 In second place, dealing with the topic of natural law we are not merely concerned with the existence of universal norms in ethics, but with the fact that norms are grounded on the psychophysical and appetitive dimension of man.
In this paper I am going to stress the connection between soul and body, reason and desire within Aquinas’ anthropology, whose approach is very different from that of the mainstreams of modern anthropology.Footnote 2 We cannot accept a big gap between anthropology, inclinations and desires on one hand, and norms on the other. This is in fact the risk of a modern philosophical moral philosophy strongly influenced by the models of modern science (as Elizabeth Anscombe has shown).Footnote 3 On the one hand, modern moral philosophy oscillates between a stress on a normativity detached from human nature and also from divine law, and on the other an exaltation of a human nature that aims to reduce norms to the biological nature of man (the ought to the is).Footnote 4 Furthermore the gap between moral norms and human nature-desire is the same gap between justification and motivation within modern and contemporary ethical theories.Footnote 5
1. Moral experience and philosophical justification of natural law
We must stress the difference between our everyday experience of natural law and philosophical justifications of natural law.Footnote 6 We might agree on the first level, but not on the second level. In fact today it seems that there is more agreement on the first level than on the second one. There are many difficulties in approaching as philosophers the topic of natural law. We might say too much or too little. In fact we might say too much on this topic (this is the risk of casuistry, which violates the novelty of reality and human freedom), or, reacting against this approach, to say too little. This is the risk, I believe, of “minimal natural right” (Hart) that underlines only the minimal and obvious presuppositions of social life, and perhaps also of New Natural Law Theory (Finnis-Grisez), because they do not say enough about how to put goods in order. From this point of view Aquinas’ approach to natural law is different and, I believe, more interesting.
It seems today that there is no consensus on natural law, particularly on justification of natural law. However, according to Aquinas, natural law is not first of all the lowest common denominator among men (as it is often in modern thought). Today, and since Hobbes’ political thought, we think of natural law as a lowest common denominator among men in order to avoid conflicts. Therefore ethics becomes primarily social ethics and political philosophy. In this case there is the risk of ideology, of the legitimization of the values of one historical society (as Yves Simon has shown).Footnote 7 Looking for common elements in men, modern thinkers (Hobbes, for example) often confuse the level of facts (in particular the “war of every one against every one”) on one hand, and the epistemological level (the impossibility according to Hobbes to reach the ultimate goal – finis ultimus – common to every man) on the other. On the contrary, Aquinas does not aim primarily at a lowest common denominator among men, but tries to attain truth and the real good of man and society. This implies the acknowledgment of an order, of a hierarchy of goods and of an ultimate goal (a summum bonum). Searching for the fulfilment of ourselves, aiming at our end, being fascinated by it, we live better. From this point of view virtue is a perfection, a value. Only if so conceived, virtue can educate other people. We must stress however, that, according to Aquinas, good in ethics does not coincide exactly with society's common good, as object of politics.Footnote 8
2. The contrast between freedom and natural law
It is frequently thought that there is opposition between natural law and freedom. However, there is no necessary opposition between freedom and natural law. In the first place, negative liberty (liberty from) does not imply scepticism on human nature or on the situation of man under a higher law. Today, however, negative liberty is keyed to negative anthropology. A new way of thought, present in the last few decades, and according to which the role of freedom is unilateraly stressed, should have brought the end of talk about natural law, and much more of human rights. But that's not how it turned out. Rather,
“it became the platform for a right to privately construct what it means to be human. Undoubtedly, the right is revisable, for the bearer of rights, the human being, is a revisable thing. And this is the crux of the problem: a self-revising being who still insists upon locating himself under a natural law even though there is nothing anthropologically normative other than freedom.
To entertain no fixed idea of human nature does not limit human liberty. This might seem like moral relativism. Actually, it is an anthropological relativism. The culture of advanced modernity, to use Macintyre's terminology, desires a fixed moral order of rights protecting a fluid and revisable humanum. The indeterminate humanum, evacuated of anthropological content, sets the framework for our contemporary doctrines of natural law and natural rights. Once upon a time, negative liberty (freedom from) implied a strong anthropology: namely, that certain human goods ought to be protected against the rough-hand of state intervention. On this view, negative liberty did not necessarily imply scepticism about human nature or scepticism about the situation of man under a higher law. Today, however, negative liberty is keyed to a negative anthropology – the dominant and recurring theme, the leitmotif, if you will, is that the person is left to his own liberty to construct his nature. But this is how I would go about answering Macintyre's question about the status of natural law in the cultures of advanced modernity. Natural law cannot be abandoned lest the state be allowed to legislate in ways prejudicial to our liberties; at the same time, conscience can have no norm except for a revisable human nature”.Footnote 9
Secondly, there is also a more profound ontological reason why there is no opposition between human nature and freedom, natural law and freedom: of course nature is a limit, but it is also an occasion, a chance in order to become more human. As Harry Frankfurt maintains: “The notion that necessity does not inevitably undermine autonomy is familiar and widely accepted. But necessity is not only compatible with autonomy; it is in certain respects essential to it. There must be limits to our freedom if we are to have sufficient personal reality to exercise genuine autonomy at all. What has no boundaries has no shape. By the same token, a person can have no essential nature or identity as an agent unless he is bound with respect to that very feature of himself – namely the will whose shape most closely coincides with and reveals what he is”.Footnote 10 And will is directed towards the object of our love. But we do not decide here and now what we should choose to love and which are the traits of our character.
According to Thomas Aquinas freedom is founded on reason (intellectus ut natura) and on the openness of the will towards good in general. Furthermore, by loving more the true good and putting order among goods, we become more and more unified and freer, because we can consider finite beings as relative. In fact, as moral beings, we cannot act without freedom or against freedom (in this Kant agrees with Aquinas), nor act without freely searching all fundamental human goods and a supreme good. Otherwise freedom is an empty idea (nihilism). Therefore we cannot easily give up the ideas of nature and of natural law.
3. Natural Law in Aquinas’ thought
First of all natural law and natural right are not the same thing in Aquinas, as sometimes happens in ordinary language. The former is promulgated by God as eternal law and discovered by men as natural law.Footnote 11 The latter is a character of the virtue of justice that concerns only our relationships with others. Nevertheless, although different, there is a connection between them, as we will see in the final section. Aquinas deals with natural law principally in Summa theologiae I-II, q. 92ss. The main topics of Summa theologiae I-II, which concerns with general ethics, are: 1) the true end of man (perfect and imperfect happiness); 2) human acts (philosophy of action – the same act can have different meanings from the ethical point of view);Footnote 12 3) goodness and evil of human acts (the good comes from an integral cause: end, object, circumstances of an act), emotions, virtues (internal principles of human acts); and 4) law and natural law (external principles of human acts). Since Aquinas’ ethics starts with the topic of happiness and deals with passions and virtues, it is a virtue ethics that is rooted on law and on human inclinations.
According to Aquinas, natural law is not immediately evident (as it is for a great part of modern thought, Calvin and Locke in particular).Footnote 13 Natural law is not immediately known, as it is the eternal law of God (lex aeterna – the point of view or the plan of God on our world). Man cannot know the plan of God putting himself in the place of God, from God's point of view. Instead we can say that man “is conformed to the Divine will, because he wills what God wishes him to will”.Footnote 14 First principles of natural law are a kind of beginning (inchoatio);Footnote 15 they are the very seeds of virtues – semina or seminalia virtutum.Footnote 16 We learn to know the first principles of natural law not immediately, but by means of a resolutio going step by step from moral experience, from civil law that is the object of determinatio (we might say of interpretation), and from virtues and vices, that are the fruit of habituation, towards first principles. We learn natural law as first principles asking, form example: which is the real ground of that virtuous behaviour or of that civil law? Or, why there is something morally wrong here and now?
Thus, natural law has a broad and a restricted meaning as first principles of natural reason (particularly in ST I-II, q. 94, a. 2). Here the first principles of natural law are known by the intellect. In a broad sense natural law is the same with the entire philosophical ethics of Aquinas. We need to argue in order to go up from civil laws and virtues and vices to the first principles of natural law. Moral experience is far more complex and rich than the precepts of natural law.
Thus, natural law is the work (opus) of practical rationality. Practical reason makes order in reality, aiming at the good to be done and looking with attention to reality (precisely to the object of natural inclinations).Footnote 17 The practical dimension of the unique human reason concerns both moral experience and moral philosophy. According to Aquinas practical reason is always speculative reason (speculative from speculum-mirror), because it knows reality. We must stress that reason is always speculative (in this wide sense) also when it is practical (when it has a practical aim) and makes order. Moral knowledge presupposes the knowledge of real goods (ontological goods, human beings, perfections as knowledge, friendship, etc.), but its object is the intentional order with which it informs the will that is concerned with real goods. Therefore, practical rationality creates the moral order of habits, virtues, laws, etc. From this point of view, every day experience of dialogue is very important because we find in it both the practical and the speculative dimension of the unique reason. In fact, when trying to convince someone (practical rationality), we always look at the expressions of his/her face (speculative rationality) and we might also consider his/her dignity as a person, changing the approach of practical reason to its object.
Furthermore, natural law requires harmony between practical reason and human basic inclinations (not every inclination, but inclinations towards perfect goods). Inclinations towards goods are known (also implicitly), valued, interpreted by practical reason and, in particular, they become moral norms (precepts) thanks to the same practical reason.
Ethical order according to Aquinas is grounded on the encounter between reason, which is nature (ratio ut natura) in an analogical sense, and human nature, as unity of body and soul with its main inclinations.Footnote 18 When these inclinations are common both to human beings and to other animals, they are human due to rationality, which is open to the infinity of being that informs them.Footnote 19 Contrary to many streams of modern thought, our desire “has eyes”, because it is informed by reason. As Steve Brock holds: “My basic thesis, then, is that not only the apprehension that Thomas is talking about in our passage (ST I-II, q. 94, a. 2), but also the inclination, is rational. Reason's natural understanding of human goods does not follow the natural inclinations to them. The inclinations follow the understanding… Another point is the calibre of the inclinations that he must be talking about. They are right inclinations. Their objects are true human goods. Otherwise they could hardly correspond to precepts of natural law”.Footnote 20
Aquinas is quite explicit about the fact that sometimes the non-rational inclinations existing naturally in a human being are not right. This is particularly clear in the case of the sensitive appetite. Unreasoned feeling may be right or wrong. The rectitude of a person's feeling is guaranteed only when it is directed by (right) reason.Footnote 21 Aquinas holds: “what is desired according to concupiscence seems good because it is desired. For concupiscence perverts the judgment of reason, such that what is pleasant seems good to it. But what is desired with intellectual appetite is desired because it seems good in itself (secundum se)”.Footnote 22 That which is unqualifiedly good, then, is an intelligible good; and it is not something that seems good to reason merely because it is already desired. It seems good, desirable, in itself. Things that are good in themselves are what Aquinas elsewhere calls bona honesta. These, he says, “have in themselves that whence they are desired”.Footnote 23 They are genuine origins of desire. Neither reason's judgment that they are good, nor the will's resulting desire of them, supposes any prior appetitive response such as pleasure.Footnote 24 To be sure, the bona honesta are pleasant. But the pleasure of them presupposes the judgment that they are good.Footnote 25
Aquinas is very clear that the experience of sense-appetite does not provide the basis for grasping the goodness as such (ratio boni). In order to grasp the good, what the intellect must understand is its own appetite, the intellectual appetite. This is why before it grasps the good, it must grasp itself. “First,” Aquinas says, “the intellect apprehends just a being (ipsum ens); second, it apprehends itself understanding (apprehendit se intelligere) a being; and third, it apprehends itself desiring (apprehendit se appetere) a being. Whence, although the good is in things, there comes first the ratio of a being; second the ratio of a true [which is in the mind]; and third the ratio of a good”.Footnote 26 To grasp the good means the good as perfect.Footnote 27
These natural inclinations are known (also in an implicit way), valued, interpreted by practical reason and, particularly they become moral norms thanks to the same practical reason. Individual inclinations known in their ontological goodness by practical reason in its speculative dimension, give content to moral experience. Practical reason as such makes them normative (precepts). The risks here are, on one hand a formalistic interpretation of practical rationality, which ignores human nature and natural inclinations that are to be known and interpreted, and, on the other hand an idea of human nature that would become normative without the work of practical reason. These are the risks of a Kantian interpretation of Aquinas (in which inclinations do not pay any role and practical reason does not know reality) on one hand, and of an objectivist or naturalistic interpretation of his ethics on the other, where practical reason does not play an autonomous role. Sometimes norms are deducted from metaphysics or they are only inclinations conceived biologically as mere instincts. The first position implies voluntarism in order to apply norms.
Let us look at some examples of how inclinations become precepts according to Aquinas. According to Maritain's idea of “dynamic schemes of action”, these moral judgements might not be explicit, although they can be made explicit at the justification level. Within the main formal and inclusive inclination towards goodness with the main moral precept founded on it (“good is to be done and pursued and evil is to be avoided”), there are some basic natural inclinations or dynamic evidences on which precepts are founded. Although every kind of inclination is informed by reason and sometimes the inferior inclination might be sacrificed to a superior one, they proceed from the more general to the more particular: 1) “I wish to preserve my health. It is morally good to preserve our health”. 2) “I desire to educate my kids. It is morally good to educate my kids”. 3) “I desire to read books in order to know. It is morally good to read books”. Or: “I desire to be happy. It is morally good to search for happiness”.
Thus, even the topic of the desire for happiness, the most inclusive inclination, belongs to natural law. It concerns the general precept, all the three precepts and, particularly, the third inclination and the third precept. In Aquinas’ ethics there is a primacy of love of the goal. The relationship with God has a strict connection with happiness and this has a strict connection with ethics. According to the Bible, but somehow also to Aristotle, since human desire is open to the infinity of being, a finite being (i.e. wealth, honour, glory, science etc.) cannot fulfil it, but only an infinite being.Footnote 28
In fact knowing which is man's good (bonum hominis), we can know human nature, and we can find the foundation of morality in human nature (philosophical anthropology). However, the first level of moral experience (that is speculative in a wide sense) is always necessary in order to know who man is. Without knowing natural law in our everyday experience we cannot know who man really is.
According to Aquinas the first precepts of natural law, like divine grace, fund the possibility of a continual newness of moral life. Contrary to Aristoteles, the vicious man can also change his life. Only in the case of a particular action, the first precepts of natural law may be partially blotted out from human hearts. But we can always recover them.Footnote 29 Unlike secondary precepts, “natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Romans 1), were not esteemed sinful”.Footnote 30 We might speak about social or cultural sins. According to Steve Brock,
“the order of the precepts would be a kind of scale (obviously not the only one) measuring the degree to which people may be living in the grip of passion. This could be useful when looking for the appropriate remedy. But perhaps more important are the implications of the general thesis that the inclinations that Thomas is talking about are rational. In aligning the true, intelligible human goods with natural inclinations, he is not suggesting that if some non-rational inclination is inborn…, its object is therefore a true good of the person in question. The further implication is that its object needs not seem a true good even to the person himself. The inclination only makes the object seem delectabile, not honestum. While it may pervert particular judgments, impeding the application of what is naturally understood, it does not positively alter that understanding. It does not denature the very light of the mind. This I think is an encouraging conclusion”.Footnote 31
As we have seen, the normative dimension of law is, according to Aquinas, also finalistic. There is no normativity without teleology. Its criterion is convenientia, fitness (something is convenient, fits) or, more precisely, that kind of good called bonum honestum. What is the meaning of conveniens as honestum? It does not mean neither the extrinsecal usefulness of modern Utilitarianism, nor the mere a priori ought of deontological Kantianism. Natural law is what is convenient with human being in its wholeness and in the hierarchical harmony of his dimensions (also the dimensions of human act as end, object and circumstances) according to the phrase of Dionysius “the good comes about from the integral cause, but evil from single defects”.Footnote 32
What goodness consists in is perfection. It is so in the good thing, and it is also so in the mind's initial grasp of it. Aquinas argues that good comes after truth in ratione, in intelligibility. This means that it enters the mind later. Its ratio presupposes and includes the ratio of perfect. Presumably the ratio of “bad” includes that of “defective”. Finally, what is perfect is also beautiful (honestum).
It is worth stressing that to consider the object of the human act we must also consider its consequences (as from the Utilitarian point of view). For example, adultery is not convenient with humanity not only per se, but also for its effects on the other man and on the unity of the man who commits it. In moral matters the main criteria are the criteria of fullness or integrity.Footnote 33
4. Ethical virtues as the flourishment of natural law
Ethical virtues are the flourishment of the main natural inclinations and of the main precepts called the seeds of natural law (semina virtutum or seminalia virtutum), although we cannot isolate them from virtues and vices in concrete life. Jean Porter holds that “even though the practice of the virtues, and therefore, happiness, does not depend on the attainment of well being, for Aquinas the idea of well being does have a normative function in his overall account of moral virtue. Virtues are the dispositions of human capacities oriented toward well being, and such as they take their norms, in key part if not entirely, from the exigencies of basic well being (see, for example ST II-II, q. 141, a. 6) and since the idea of well being forms the link between nature in the more comprehensive sense and the norms of natural law – between nature as nature and nature as reason – this suggests that for Aquinas the idea of human well being yields natural law precepts through the mediation of ideals of virtue, which are themselves developed from general paradigms to reflective ideals through a process of reflection on what it means to live a complete, fulfilled – in a word – perfect human life… the life of virtue is paradigmatically linked to pursuing and enjoying these goods in a particular way which is itself enjoying and satisfying”.Footnote 34
We can grasp the narrative character of virtues, their capacity of giving sense and unity to life. We have to stress that in Aquinas, as in the rest of the classical and medieval tradition, ethical virtue means an excellence of character and not only (as happens often today) a mere motivation in order to apply moral precepts. This topic is relevant if we want to give a sound foundation to moral education and to education in general: only aiming at the good, the supreme good, we can be unified in ourselves, happy, and therefore can educate other people. Without virtues as outstanding qualities there is no education.
In particular, if we consider the cardinal virtues, temperance and fortitude are more connected with the first and the second inclination and precepts, and justice to the third one. In fact, justice is intentionally open to the others and to the Other (God). However, temperance and courage also have a social dimension. In justice, particularly in the precepts of justice, we can find the relationship between law and right, law and virtues: “The precepts of the Decalogue are the first principles of the Law: and the natural reason assents to them at once, as to principles that are most evident. Now it is altogether evident that the notion of duty, which is essential to a precept, appears in justice, which is of one towards another. Because in those matters that relate to himself it would seem at a glance that man is master of himself, and that he may do as he likes: whereas in matters that refer to another it appears manifestly that a man is under obligation to render to another that which is his due. Hence the precepts of the Decalogue must pertain to justice. Wherefore the first three precepts are about acts of religion, which is the chief part of justice; the fourth precept is about acts of piety, which is the second part of justice; and the six remaining are about justice commonly so called, which is observed among equals”.Footnote 35
As Macintyre has well shown, natural law has a communitarian dimension because virtue is learnt through communities of life:
“Consider first what is involved in pursuing one's good as a rational agent. It is of crucial importance in deliberating as to how to act here and now that we deliberate in the company of other people, something that Aristotle had noticed and that Aquinas emphasizes. For only thus will we escape from the one-sidedness of our own individual standpoint, only thus will the full range of relevant considerations be brought into play. But rational deliberation in the company of others is only possible, if both we and those others are committed to securing agreement only through the force of rational argument, only by, so far as possible, treating as good reasons for acting in this way rather than that what are in fact good reasons. So we must rule out from the beginning any attempt to arrive at agreement by use of coercive force or the threat of such force or by some mode of non-rational persuasion. The common mind at which we seek to arrive must not be the outcome of violence or of seduction, but of rational debate. Yet this outcome is possible only if the participants in such deliberation are committed and are seen by others to be committed to observing certain rules unconditionally and without exception”.Footnote 36
These rules are the same rules of natural law. Political communities require natural law as its ground.
But all this does not mean, as I have shown, neither that, according to Aquinas, natural law looks primarily for a lowest common denominator among men in the modern sense (and not for truth and good), nor that it is first of all a procedure in order to solve conflicts. On the contrary procedures are founded on natural law. Today there is the risk that the logic of procedural thought invests the moral experience and the virtues of the single man. This is the meaning of “politically correct”.
We must stress that, according to Aquinas, society is not merely built on the abstract universality of men as rational beings with a peculiar language (thus conceived in a Kantian sense), but starting from our “lower” commonality in species:
“Every man is naturally every man's friend by a certain general love; even so it is written (Sirach, 13, 19) that ‘every beast loveth its like’. This love is signified by signs of friendship, which we show outwardly by words or deeds, even to those who are strangers or unknown to us. Hence there is no dissimulation in this: because we do not show them signs of perfect friendship, for we do not treat strangers with the same intimacy as those who are united to us by special friendship”.Footnote 37
It is worth finishing by asking: does natural law require belief in God? In order to become the object of our moral experience, natural law (as “natural”) does not require, according to Aquinas, that we explicitly believe in a God who promulgates it. Instead, on a philosophical level, if we want to be coherent, its foundation requires the existence of God as the very root of the order of reality as well as of the normativity of law. At the very beginning of the world there is no chance, but a principle of order. The practice of natural law and, in particular, its justification by means of philosophical reason, opens rationality towards God, if not towards the God of Christian Revelation, towards God as the principle of the order of reality and therefore of the normativity of natural law.
