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Essays, Opinion, & Commentary |
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Perceived Through Reason by George J. Irbe
Introduction For many years I have been in search of an answer to the question: "Is there a Natural Law?" The search has been a frustrating one. I do not remember how long ago I reached the inner conviction that Natural Law exists; it seems like I have always had it. But, until recently I could not even express cogently my own sense of what Natural Law is. All I could say for sure was that I was absolutely convinced that it does exist. It is understandable, then, that I craved for more than just this vague instinctive feeling about Natural Law; I was searching for confirmation of it, for a definition of it, for assurances from others that my instincts about Natural Law are right. I have not found any one Natural Law theory, espoused by the works of any one of the eminent thinkers which I have consulted, that would match exactly my own particular concept of it. Through the ages, wise men have come up with many different philosophical opinions on what Natural Law is, ranging from the view that denies the existence of any such law, through various theories on its source, validity and authority, and culminating at the other end of the spectrum in a purely religious belief that Natural Law has been codified and handed down to man directly by the biblical God, the Ten Commandments being the most prominent example of such promulgation. In the Foreword to Natural Law Theory: Contemporary Essays [1], the editor Robert P. George writes that there is a "remarkable assortment of natural law theories" around." The theories are categorized as "liberal," "conservative," "procedural," and "substantive." I cannot say that I am familiar in detail with any of the many modern-day variants of Natural Law theory out there. I have taken a quick glance at a few, but have not come across any one that would satisfy entirely my notion of what Natural Law is. The Natural Law concepts contributing the most to my own understanding of it come from scholars who adhere, to some degree at least, to the venerable traditional school of philosophy of the ancient Greeks. I am undertaking this essay now only because I feel that I have gathered a sufficient number of kernels of thought on Natural Law from the various philosophers in order to fill in the mosaic of my own concept of it. It was also fortunate that I recently encountered a philosopher whose explanation of Natural Law helped me greatly to at last give verbal expression to my own conception of it. That philosopher is Thomas Hill Green (picture), whose work I will be referring to at some length later. But before I proceed to a discussion of how the Natural Law philosophy of Green and of other philosophers has contributed to my own understanding of it, I want first to put into words my rather naive and simplistic gut feelings about Natural Law, which I could not do before reading T.H. Green. In addition to Green's ideas which have provided for me the final break-through to my own understanding of Natural Law, several other philosophers, even ones who are skeptics concerning Natural Law, have contributed in their own way to my understanding of it. I admit freely to being, like most laymen, partial and selective in choosing the philosophers whose writings I have perused in any detail. Unlike the professional philosopher who must compete in the academic arena with other schools of philosophy and must of necessity know the sharpness of the arrows in the other's quiver, I have not felt the need or interest, beyond acquiring a general superficial knowledge of their ideas, to delve into the details of the schools of philosophy and philosophers with whom I basically disagree. It follows, then, that in this discussion I will only call on the works of a select few of my favorite philosophers. As I mentioned above, most of my favorites are thinkers of the classical rationalist type.
The "There Ought to be a Law" Theory We all have, at one time or anther, exclaimed, "there ought to be a law!" Almost without exception, the exclamation is evoked by a sense of frustration, if not anger, when we encounter some perceived wrong or unjust action which we are powerless to fight by the immediately available legal means. There is, however, a more significant and substantive concept voiced in the exclamation "there ought to be a law!" than merely a complaint about a specific injustice that has visited the individual doing the exclaiming. All rational human beings understand the meaning of "law" as a proscription or prescription, an "ought" or an "ought-not" which applies to everyone, or, in non-egalitarian societies, at least to a group or class of people. Therefore, by calling for a law, the individual is calling for a prescription or proscription which would be applicable to more than just him or her, and to all future occurrences of the same injustice which he or she is suffering from now. In other words, a person will not call for a "law" for purely selfish reasons of the moment, because he knows that, if his motives are selfish and unjust he can as well be on the wrong side of that same law, if enacted, and thus be a victim of someone else's selfish actions in a future circumstance. Let me add here that in exceptional cases the same benefit of a law is achieved even when the call of "there ought to be a law!" comes from a rogue, for instance, one like Kennedy the Patriarch, who was influential in having laws passed that stopped unethical practices in stock-market trading after he had made his fortune by those same unethical practices. The statement by T.H. Green on Natural Law that lifted the veil, so to speak, on my own understanding of it and brought the "there ought to be a law!" expression to mind is:
There is no doubt that Thomas Hill Green believed in God; the only question is whether his belief was of a purely Christian kind. The dominant theme in his Prolegomena to Ethics [3] is that man's moral development results from the divine spirit acting according to a divine plan through individuals and mankind as a whole. The end "which is the vocation of human society to realize" in the statement above is according to that divine plan. This belief is probably the reason why Green was identified as an "idealist" among philosophers. As a rational theist I have found Green's philosophy very appealing because it is inspired by a more sophisticated theology than the dogmatic one of Aquinas. I find that I share much of the substance of Green's beliefs, if not always his teleology. Thus, Green's declaration above that "There is a system of rights and obligations which should be maintained by law, whether it is so or not," resonates with my belief that when we call out "there ought to be a law!," it is as if we dip into a mysterious inner reservoir where the seeds of such "laws" already reside. We sense that this reservoir lies within our immaterial soul, along with the other fundamental attributes of intelligence and self-consciousness. I believe that these attributes are very special evolutionary gifts from the Creator. All that we call "natural" is a part of His creation. Thus, I regard all the laws, those that rule the physical universe and those abstract moral laws that spring forth from our soul, as "natural." My complete belief system is explained in essays [4], [5], [6], [7] posted on my personal web page or here in the Academy; a summary of my beliefs is given in the essay "A Statement of My Faith." [8]
The Three Views of Natural Law As I stated in the Introduction, there are, broadly speaking, three views on Natural Law: (1) Natural Law is promulgated by Yahweh; this is believed by people who are sincere adherents to one of the three religions based on the Old Testament of the Bible; (2) Natural Law simply is, just as the universe simply is, and both are discernable through man's reason; this is believed by rational philosophers who would rather not say whether they also believe in Yahweh as the creator of the universe and the promulgator of the law, or no; (3) Natural Law is non-existent; this is believed by rational philosophers who may or may not also believe in Yahweh. I find that my own view of Natural Law does not fit comfortably into any one of these categories. By this yardstick, I guess that my understanding of Natural Law belongs somewhere between views (1) and (2): I recognize a divine promulgator of Natural Law, i.e. the Creator-God, and believe that men are obligated to use their ability to reason to discover how this Law pertains to the functioning of the universe and to their own behavior in it. Often the most elucidating contribution to a critique of one's beliefs is provided by one who is skeptical of those beliefs. In this instance, I find Jeffrey Stout's opinions on Natural Law to be the case. [9a] Like Edmund Burke he has "a collection of doubts" that keep him from "becoming a theorist of natural law," and he dismisses the very concept with "there are many natural law theories, some less objectionable than others." But Stout provides, from the perspective of the non-believer in Natural Law, a candid assessment of the premises of those who believe in Natural law. Thus, of Aquinas he writes: "He held that promulgation is essential to law, that there is (literally) no such thing as a law not promulgated by someone. This implies that a higher law, if there is one, has a promulgator as its source. . . The promulgator is God, the law he promulgates eternal. The natural law . . is something that can be known by human beings naturally. Assume a biblical divine promulgator . . and you have the Thomistic higher law; otherwise, not." Stout also remarks on the modern forms of Natural Law theory which are not based on theological premises. The modern forms avoid defining a divine promulgator "in either of two ways: by finding a surrogate for God as promulgator of the higher law or by detaching the concept of law from that promulgation." Kant, the most prominent of them, elevated Reason "to the status of quasi-divinity. . . The higher law, he argued, derives from our own self-legislating capacity as rational agents. . . According to Kant, we do not discover the higher law, we give it to ourselves." Stout notes that vestiges of the old natural law theory survive ". . in Cambridge Platonism, Deism, and the Scottish Enlightenment. The order of nature, though it may have been created by a divine being, is said to be governed by laws that human beings can discover through rational enquiry unaided by revelation or theological assumptions. . . The laws of nature, whether promulgated by someone or not, are to be defined simply as the deep structure of the natural order that reason aims to discover." My interest was drawn also to Stout's idea of how the rational deductive system, as employed by David Lewis, could be used for deriving the moral component of Natural Law. Stout claims that ". . it is the least metaphysical and most promising definition of lawhood currently under discussion in the philosophy of science." He proposes the following:
I quote from Jeffrey Stout's essay at length so that I can better high-light my own understanding of Natural Law by contrasting his arguments with my own. Returning first to the Thomistic model, I too believe that God is the promulgator of all natural law, including moral law, and that this law can be known by human beings naturally. But, the Creator-God who I recognize as the only genuine one who exists, is not the biblical divine promulgator who Stout and nearly everyone else assumes that one must be referring to, whenever one insists on having a divine promulgator. This myopic, one could also say, parallactic, view of God has been the only accepted view for millennia in all the societies and civilizations based on the Bible. It pervades the thinking of both the rationalists who might be ambivalent about God's role in Natural Law and, yes, the atheists, who also must posit the biblical God as the one they do not believe in. I am quite certain that if any one of the rational thinkers in these two groups was asked whether he or she could believe in a god whose bona fides are grounded in a polytheistic society, they would answer with a resounding "No!" Yet, it is precisely that kind of god they revere, either through their affirmation of him, or through an equally fervent denial of him. Not very many people go to the trouble of researching the history of religion. Allan Menzies is one who has done a thorough job of it. It turns out that the God now worshiped by the three monotheistic religions emerged as the winner from a pantheon of gods of a polytheistic society because he was the patron god of the most powerful tribe of that society. Allan Menzies writes about the tribes of Israel:
The believers in the biblical God want to have it both ways: on the one hand, they say that they believe in the same god as did Moses (the most powerful one among the many gods of the Israeli tribes); on the other hand, by some magical process which they cannot explain, this god evolved, in a quantum leap, from being one among many to being the one and only God not only of the Israelite tribes but of all the universe. And, as if there was not confusion enough already, the believers still ascribe to this god the characteristics and functions he had when a tribal god, while also regarding him as the Creator of the universe. Belief in this hybrid god has dominated the civilizations of the West for millennia; all attempts to introduce and disseminate the concept of the genuine Creator-God to the average man have been suppressed and expunged as heretical and blasphemous. So it is indeed the irony of all ironies that consciousness of, and acknowledgement of, the actual Creator-God has been usurped for millennia by an impostor who retains, to this day, the trappings of his pagan heritage. That is why Stout can casually toss in the remark, "Assume a biblical divine promulgator . . and you have the Thomistic higher law; otherwise, not." To that I answer, "I beg your pardon, otherwise yes. I assume a non-biblical divine promulgator, and have a higher law comparable to the Thomistic one." Even as I believe that all Natural Law (physical and moral) comes from the divine Creator, I also believe, along with the philosophers of the Enlightenment, that Natural law can be discovered (in Stout's words) " . . through rational enquiry unaided by revelation or theological assumptions." By replacing Aquinas's version of God with the Creator-God I can nevertheless discover Natural Law through rational enquiry unaided by conventional theological assumptions, or by that favorite tool of the religious con-artists -- revelation. Finally, I also achieve an outcome similar to what results from Lewis's "deductive system" without the deductive system: my Natural Law is discovered by humans unassisted by divine revelation. I am a theist who is convinced that God is the author of the moral law as well as every other kind of Natural Law. And I hope that I spell out what I mean clearly without resorting to theology. |
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