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Published online by Cambridge University Press: 13 September 2019
Amanda Perreau-Saussine de Ezcurra saw positive law as a resource for uncovering natural law. She also saw our natural inclinations, especially our natural sociability and our natural tendency toward benevolence, as crucial to a proper understanding of natural law. Drawing on these two foundational ideas of hers, this article will look at the Decalogue, the pre-eminent example of divine positive law, and then our concrete experience of desire, as revelatory of what she called ‘a law-like ordering of the world prior to human thought and action, a natural ordering that constrains practical reasoning’. To her characteristic concerns, it will add attention to God's silence.
1 Amanda Perreau-Saussine de Ezcurra (1971–2012) was Lecturer in Law at the University of Cambridge from 2000 until her tragic death from cancer. At the time of her death, she was working on a manuscript tentatively titled, Law as a Guide to Justice: Old Questions for New Natural Lawyers, under contract with Princeton University Press, from which the quotation above is taken. This article is an attempt to appropriate some of her insights, ‘that nothing may be lost’ (John 6:12) of the fragments of that incomplete work. It is dedicated to her memory.
2 I am grateful to Hans Ulrich Steymans for pointing this out to me.
3 Jewish thinkers disagree about whether such a thing as natural law should be acknowledged, or whether Mosaic law presupposes natural law. For a representative of those arguing in favor, see Novak, David, Natural Law in Judaism (Cambridge: CUP, 1998)CrossRefGoogle Scholar; for a representative of those arguing against, see Fox, Marvin, ‘Maimonides and Aquinas on Natural Law’, in Interpreting Maimonides: Studies in Methodology, Metaphysics, and Moral Philosophy (Chicago: University of Chicago Press, 1990), pp. 124–51Google Scholar. Those arguing in favour typically point to the ancient rabbinic tradition of the Noahide laws, seven precepts held to bind Gentiles as well as Jews due to their common descent from Noah. On the history of the Noahide laws in Jewish tradition, see Novak, David, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (New York: Edwin Mellen Press, 1983)Google Scholar. Without presuming to enter into intra-Jewish disagreements, the fact that a long tradition of Jewish thinkers has found something like a universal code implicit in the Pentateuch gives additional support to the notion that Mosaic law can be credibly interpreted as presupposing a deeper, unspoken law.
4 While Catholic theology has accorded an uninterrupted place to natural law, regarding it as something knowable by reason alone apart from revelation, Protestant theology has often been, and often remains, ambivalent or opposed to the idea of natural law. Nevertheless, historically, natural law has figured prominently in many Protestant traditions and subtraditions. Protestant theorists of natural law tend to be less optimistic than their Catholic counterparts about either our capacity to know the natural law apart from revelation or its resources for building moral consensus in pluralistic societies. Still, many Protestant theologians have given natural law an importance place in their ethical thought, and natural law has been experiencing resurgent interest in Protestant theology. On the historical place of natural law in the Protestant tradition and its potential resources for contemporary Protestant thought, see Grabill, Stephen J., Rediscovering the Natural Law in Reformed Theological Ethics (Grand Rapids, MI: William B. Eerdmans, 2006)Google Scholar; VanDrunen, David, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (Grand Rapids, MI: William B. Eerdmans, 2010)Google Scholar; Covington, Jesse, McGraw, Bryan T. and Watson, Micah (eds), Natural Law and Evangelical Political Thought (Lanham, MD: Lexington Books, 2013)Google Scholar; Herdt, Jennifer A., ‘Calvin's Legacy for Contemporary Reformed Natural Law’, Scottish Journal of Theology 67/4 (2014), pp. 414–35CrossRefGoogle Scholar; Arner, Neil, ‘Precedents and Prospects for Incorporating Natural Law in Protestant Ethics’, Scottish Journal of Theology 69/4 (2016), pp. 275–388CrossRefGoogle Scholar.
5 David Novak suggests something similar when he argues that ‘natural law is the precondition of the covenant’. See Novak, Natural Law in Judaism, pp. 185–7.
6 See Summa Theologiae 1/2.94.2. The exegetical question of in just what natural law consists for Aquinas has been a longstanding dispute among Aquinas scholars. There are three main positions. The first position is that, for Aquinas, natural law is identified with the precepts of practical reason, and thus essentially rational or intellectual. The second position is that natural law is the sum total of our natural inclinations, and thus essentially appetitive. The third position is that natural law involves both rational and appetitive elements, with advocates of this position emphasising the rational and the appetitive to differing degrees. For a discussion of various positions on offer, see Hall, Pamela M., Narrative and the Natural Law: An Interpretation of Thomistic Ethics (South Bend, IN: University of Notre Dame Press, 1994), esp. pp. 1–22Google Scholar; May, William E., ‘Contemporary Perspectives on Thomistic Natural Law’, in Goyette, John, Latkovic, Mark S. and Myers, Richard S. (eds), St Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Washington, DC: Catholic University of America Press, 2004), pp. 113–56Google Scholar; and Levering, Matthew, ‘Natural Law and Natural Inclinations: Rhonheimer, Pinckaers, McAleer’, The Thomist 70/2 (2006), pp. 155–201Google Scholar. My own reading falls into the third category. In my view, for Aquinas, the inclinations are natural law with respect to appetite, and the precepts are natural law with respect to reason. From our perspective, the inclinations hold ontological priority. The precepts are nothing more than a thematising of our inclinations. They distil our inclinations into thought so that our inclinations can be known by our intellects and thus guide our wills. From God's perspective, however, the priority is reversed. The order of creation, and thus our natural inclinations, flow from God's reason through God's will. Consequently, from God's perspective, the precepts hold ontological priority. In short, for us, natural law consists primarily in our natural inclinations, and from our experience of them we derive rational precepts; and for God, natural law consists primarily in an ordinance of reason – God's own reason – and secondarily in our natural inclinations, insofar as God promulgates his eternal law through them. For more on my reading of Aquinas on natural law, see Lombardo, Nicholas E., The Logic of Desire: Aquinas on Emotion (Washington, DC: Catholic University of America Press, 2011), pp. 114–17Google Scholar.
7 The number of our natural inclinations, their defining characteristics and their knowability by fallen humans are greatly disputed by Christian theologians. The question of what precisely we can infer from Mosaic law about these matters cannot be explored here. For our purposes, it is enough to note that the natural inclinations most obviously presupposed by Mosaic law are not controversial.
8 In her unpublished writings, Amanda Perreau-Saussine de Ezcurra forcefully emphasised the importance of exceptionless moral norms for natural law theory. At first, her emphasis puzzled me. While I did not disagree about the existence of exceptionless norms, I was puzzled by her emphasis. Then, after reflecting more, I understood: without exceptionless norms, natural law theory has no ground to stand upon. It inevitably descends into a free-for-all of subjective judgements about the relative weight of various goods or norms. Without exceptionless norms, natural law theory is also, ultimately, deprived of its power to effect positive social change or to protect the marginalised. If even its advocates do not claim that some actions are always and everywhere wrong, on what basis can natural law theory challenge social and cultural consensus when that consensus endorses or tolerates unjust behaviour? The defence of native Americans in the face of Spanish atrocities by appeals to natural law provides an important case study, not only of natural law's social power, but also of the central place of exceptionless norms in natural law theory. See Lantigua, David M., ‘The Freedom of the Gospel: Aquinas, Subversive Natural Law, and the Spanish Wars of Religion’, Modern Theology 31/2 (2015), pp. 312–37CrossRefGoogle Scholar, esp. pp. 332, 335.
9 See, for example, Finnis, John, Grisez, Germain and Boyle, Joseph, ‘“Direct” and “Indirect”: A Reply to Critics of our Action Theory’, The Thomist 65/1 (2001), pp. 1–44CrossRefGoogle Scholar; Tollefsen, Christopher, ‘Is a Purely First Person Account of Human Action Defensible?’, Ethical Theory and Moral Practice 9/4 (2006), pp. 441–60CrossRefGoogle Scholar; and Rhonheimer, Martin, ‘The Moral Object of Human Acts and the Role of Reason According to Aquinas: A Restatement and Defense of my View’, Josephinum Journal of Theology 18/2 (2011), pp. 454–506Google Scholar.
10 See, for example, Flannery, Kevin L., ‘What Is Included in a Means to an End?’ Gregorianum 74/3 (1993), pp. 499–513Google Scholar; Jensen, Steven J., ‘Intention’, in Good and Evil Actions: A Journey through Saint Thomas Aquinas (Washington, DC: Catholic University of America Press, 2010), pp. 44–72Google Scholar; and O'Brien, Matthew B. and Koons, Robert C., ‘Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory’, American Catholic Philosophical Quarterly 86/4 (2012), pp. 655–703CrossRefGoogle Scholar.
11 For my attempt to do so, see ‘Intending and Willing’, in Lombardo, Nicholas E., The Father's Will: Christ's Crucifixion and the Goodness of God (Oxford: OUP, 2013), pp. 21–41CrossRefGoogle Scholar.
12 The existence of this tendency in rational beings has been affirmed by numerous philosophers in one form or another, most notably, for our purposes, by Thomas Aquinas. See Summa Theologiae 1.59.1.
13 The account of natural law given here combines a view of moral normativity that roughly follows the standard Thomist position with a view of intention that roughly follows the standard new natural law position – without forfeiting its claim to represent a faithful interpretation, or elaboration, of Aquinas’ actual position.
14 For more on this approach to moral value and moral obligation, see ‘Moral Value and Moral Obligation’, in Lombardo, The Father's Will, pp. 42–60.
15 As Emile Perreau-Saussine put it memorably shortly before he died.
16 An earlier version of this article was presented at the symposium, ‘Law as a Guide to Justice: A Symposium on the Philosophical and Theological Foundations of Law and Justice in Honour of Amanda Perreau-Saussine Ezcurra (1971–2012)’, held at the Faculty of Law of the University of Cambridge on 4 March 2017. I would like to express my great gratitude to the symposium committee (Rosemary Boyle, Carlos de Ezcurra, Nicholas McBride, James Murphy, Tobias Schaffner and Guglielmo Verdirame) for all their work organising it and for inviting me, and especially Tobias Schaffner for his above and beyond efforts.