Natural Law: A Paleo-Reformed Defense PDF Print E-mail
Theology
Written by Steven Wedgeworth   
Wednesday, 15 December 2010 07:17

Though it's taken some lumps over the years, it is safe to say that “natural law” is back.  The Roman Catholic philosopher J. Budziszewski has written several books defending the concept of a natural law, and more recently Stephen Grabill has made the case that the Protestant Reformers held this doctrine in common with their medieval predecessors.  The various Reformed “confessionalists” as well as those following Richard Muller in asserting the “continuity thesis” of Reformed Orthodoxy have also taken up natural law as a key component of conservative Reformed theology. What shall we say in response to this? That the Reformers believed in the natural law is an easy one. They certainly did.  What that natural law is, however, is a bit more complicated. Just as we saw with the doctrine of the two kingdoms, the loudest proponents of a doctrine are not always its most faithful adherents.

The two easiest and most authoritative sources for a Christian understanding of natural law are Thomas Aquinas and Richard Hooker. They agree on all major points, and between the two of them the majority of Christendom is represented.[1] The original claim was basic. The natural law is “to seek the good.” St. Thomas tightly relates it to reason, writing:

...the first principle of practical reason is one founded on the notion of good, viz. that "good is that which all things seek after." Hence this is the first precept of law, that "good is to be done and pursued, and evil is to be avoided." All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided.[2]

Richard Hooker equates natural law with creational norms. He says that by natural law, “we sometimes mean that manner of working which God hath set for each created thing to keep.[3]” He goes on to divide this between voluntary and involuntary agents, but he continues to maintain that all of creation is subject to the natural law.

The concept of natural law does have its non-Christian proponents, but it is hardly a foreign element of thought in the history of Christendom. Enjoying both Roman and Jewish predecessors, a sort of natural law theory was enshrined for the Christian Roman Empire in the Corpus Juris Civilis, better known as the Code of Justinian. It became a commonplace of Medieval and Reformation Christian thought, and whenever challenged, its defenders built their apology on both reason and biblical exegesis. The opening chapters of Paul's Epistle to the Romans are the most famous Biblical sources used.  Aquinas freely quotes Aristotle, to be sure, but in his specific discussion of natural law he chooses to instead cite Augustine, Romans 2:14, and Psalm 4:6. The most influential civilization to be built upon a sophisticated theory of natural law was medieval Europe, and that is rarely a society praised for its secularity. Yet somehow, arguments are still made (on both sides) that natural law is opposed to a Christian civilization. Why is this?

The first misunderstanding is the thought that an affirmation of natural law is somehow a step away from divine law. To the contrary, natural law is founded on divine law.  Aquinas has three general types of law: divine, natural, and human. Indeed, natural law is “the rational creature's participation in the eternal law.[4]” Hooker also says that any basis for natural law must “have recourse to that higher law... because all other laws do thereon depend.[5]” Neither is it the case that the natural law has any autonomy, but rather “those things which nature is said to do, are by divine art performed, using nature as an instrument; nor is there any such art or knowledge divine in nature herself working, but in the Guide of nature's work.[6]

Another misunderstanding is that natural law is founded upon observation. Some rhetorical presentations make it sound as if “natural law” is equivalent with the “law of the jungle.” People will rebut claims that heterosexuality is natural by appealing to supposed contrary behavior among certain animal species. Others will seek to produce human societies that have contradictory social mores. This approach is wrong-headed, however, because natural law is self-evident.[7] It is a function of reason, which is a fact of humanity because of man's creation in the image of God. Natural law theory has always held for itself the right to accuse people of acting contrary to nature.

It is easy to see that natural law is inseparable from the more basic concept of “nature.”  Aquinas states that the rational creature “has a natural inclination to its proper act and end.[8]” In other words, nature brings telos. Richard Hooker adds, “all things in the world are said in some sort to seek the highest and to covet more or less the participation of God himself.”[9] The Westminster Shorter Catechism's first question is based on this same concept of man's end. The natural law is that which is in accordance with this end, and anything which works contrary to this end is unnatural. The erosion of belief in natural law occurred historically alongside the erosion of belief in nature. Rather than natural law being a product of the Enlightenment, it was the Enlightenment which made the first major step away from the natural law tradition.

We need to go even further. Natural law is not positive law. It does not itself do anything.  It provides instincts and impulses which must then be artfully used by reason and an informed conscience. Likewise, there has never been a mere state of nature, but instead specific societies made up of people who interpret nature and put it to use. The actual business of articulating specific laws and putting them into action is known as politics, and it will always vary depending upon those working within it. This is why experience shows us a variety of laws. Aquinas explains:

To the natural law belongs those things to which a man is inclined naturally: and among these it is proper to man to be inclined to act according to reason... The speculative reason, however, is differently situated in this matter, from the practical reason. For, since the speculative reason is busied chiefly with the necessary things, which cannot be otherwise than they are, its proper conclusions, like the universal principles, contain the truth without fail. The practical reason, on the other hand, is busied with contingent matters, about which human actions are concerned: and consequently, although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects.[10]

In fact, the whole question of a nation's positive laws is distinct from that of the natural law. So much of the old theonomy controversy (again on both sides) missed the point.  The opposition should not be between the laws of Israel and the natural law, but rather between the laws of Israel and the laws of other nations, both being understood as specific expressions and applications of the natural law. The laws which a particular nation establishes actually fall under the category of what Richard Hooker calls “the law of the commonweal.” He says that this law is “the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions, as the common good requireth.[11]” Later he adds another distinction, that of the “law of nations.”  This is the law which all nations' commonweal law are measured against when they interact with one another. Hooker states, “there is no reason that any one commonwealth of itself should to the prejudice of another annihilate that whereupon the whole world hath agreed.[12]” This is also what Calvin is referring to in his discussion of the “common law of nations” in the final chapter of his Institutes.[13]

The natural law is the moral principle upon which other human law is founded, the law of the commonweal is the body of laws which any particular nation establishes for itself, and the common law of nations is that standard by which contrasting commonweal laws are judged. We might think of it with contemporary examples. Within the United States, speeding laws vary from state to state. They are founded on the moral principle of protecting life, yet we understand that certain conditions (a flat lowly populated state with mostly straight roads) allow for travel to take place at higher speed while maintaining appropriate safety, whereas other conditions (curvy roads going up and down hills through densely populated regions) require stricter limits. The laws could differ according to circumstance without violating justice, yet if one state refused to enact any laws at all which protect life in connection with road travel, we would deem them as having committed an injustice. In international affairs, we regularly hear of nations being guilty of “human rights violations.” They may retort that they are sovereign states, not owing submission to foreign standards, but the traditional natural law theory does not let them off the hook.

A final misplaced objection is the charge that natural law is too caught up in rationalism and the capacity for goodness in man. The biblical perspective teaches that man was initially limited by fact of his creaturehood, and beyond this, we must also reckon with the noetic effects of mankind's fall into sin. Man's heart is crooked, willing evil. Since nature has been plunged into sin, should we not then reject a theory of natural law?

This is a basic question, and it goes beyond the single issue of law, but we will have to confine ourselves to only one response here. It is true that natural law teaches that men recognize a sense of justice because of their nature. Richard Hooker even says that natural laws “are investigable by reason, without the help of revelation supernatural and divine.[14]” But we have to be careful to read the rest of what he says to have the true picture. Hooker has already said that nature is actually dependent upon the divine for all that it has, and in fact, he has stated that to say “nature does” is but another way of saying “God does.” How this works is beyond reasonable capacity. “The manner of this divine efficiency, being far above us, we are no more able to conceive by our reason, than creatures unreasonable by their sense are able to apprehend after what manner we dispose and order the course of our affairs.[15]” Thus reason has clear limitations. Hooker also confesses the reality of sin. Nature itself now shows forth certain defects “the true original cause thereof, divine malediction, laid for the sin of man upon these creatures which God had made for the use of man.” The solution to this problem is “that saving truth which God hath revealed unto his Church,” and it is "above the reach of their merely natural capacity and understanding.[16]

Right reason understands that there is something beyond it.[17] Reasonable man desires happiness, but final happiness eludes him. “Happiness therefore is that estate whereby we attain.. the full possession of that which simply for itself is to be desired, and containeth in it...the highest degree of all our perfection. Of such perfection capable we are not in this life.[18]” Hooker sounds particularly Calvinistic when he describes what reason detects about sinful society, “Laws politic... are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience unto the sacred laws of his nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast...[19]” According to natural law theory, natural mankind hardly comes out smelling like roses.

It is easy to make the connection between this understanding of natural law and the Reformers' view of law and gospel. When it comes to condemning sin and providing outward order, law is good and necessary. When it comes to salvation, however, the law is self-refuting (Gal. 3:10, 21). The law, seen rightly, points away from itself for redemption.  So too with natural reason. This is particularly necessary when it comes to the question of liberty. Only a Christian state can consistently stay within its proper bounds.

A. P. d'Entreves devotes half of his Natural Law: An Historical Survey to explaining how natural law could both ground law in morality and allow for the freedom of conscience.  He states that a belief in natural law requires “that the identification of law and command be overcome or abandoned.[20]” The command is founded upon the nature, and “the fact that positive law is laid down in the form of a command and proceeds from the will of the sovereign does not mean that the holder of sovereignty is immune from all legal obligation.[21]” There are no “absolute” rulers (only God is such), and any specific legislation is always accountable to a transcendent moral standard. This moralization of law, however, does not necessarily lead to an over-reaching state or ministerial control,[22] but rather, in keeping with reason's recognition of its own self-limitations, “it is possible to clearly delimit the sphere which is beyond the bounds of State action.[23]” d'Entreves goes on to cite (you guessed it) Aquinas and Hooker:

Man, the maker of human law, can pass judgment only upon external action, because “man   seeth those things that appear,” as we are told in the book of Kings. God alone, the divine Law-giver, is able to judge the inner movements of the will, as the Psalmist says, “The searcher of hearts and reins is God” (Th. Aquinas, Summa Theol., 1a 2ae, 100, 9).

Wherein appeareth also the difference between human and divine laws, the one of which two are content with opus operatum, the other require the opus operantis, the one but claims the     deed, the other especially the mind (Hooker, Eccles. Pol., V, lxii, 15).[24]

Here is the essential message of the Protestant doctrine of the two kingdoms. The jurisdiction of law is that of external affairs and not the heart and mind. The extension of the arm of the state stops prior to the internal affairs of man. A final statement from d'Entreves will do, “The lesson of natural law... would, I suppose, be simply to remind the jurist of his own limitations.[25]

Law and reason both recognize their own limitations, and it is only alongside a Protestant Christian articulation of the gospel that either can perform their proper function. In keeping with reasonable conversation, Calvin cited reason and the common law of the nations to support the claim that “the duty of magistrates... begin[s] with religion and divine worship.[26]” He was certainly aware that Cicero and Plato would have a different understanding of the content of religion and divine worship, yet he knew that they saw the necessity of such. This is the apologetic edge to natural law theory. Nature proclaims the need for something it cannot provide. A non-Christian's reason will tell him that certain things are necessary, yet when he goes about his own attempts to create those things he fails. Natural law recognizes that it is a bad idea for the state to be a savior, yet apart from grace natural man inevitably returns to this error again and again. Religious tolerance was achieved finally by Protestant legal philosophy. It is interesting that no prior civilization, even working with natural law theory, offered such freedom. It is only the gospel which provides that which the state cannot, and a properly Christian interpretation of natural law will always understand the natural and reasonable necessity of protecting the conditions for that gospel to be proclaimed.

This is why natural law is actually no help to modern secularism.[27] It proclaims that there is a transcendent moral order upon which all law must be founded. It states that this order is beyond reason's abilities to understand, and it says that the state must be content with its own limitations. It says that might does not make right, nor does an isolated act of will. Natural law proclaims that it must be fulfilled by something else.

In short, natural law is a confession of faith.

 

Footnotes

[1]If it is objected that the Eastern Orthodox thinkers are being left out, we need only point out that for this topic Thomas is dependent upon John of Damascus. The Corpus Juris Civilis is also properly Eastern.  For Reformation pedigree, all of the Reformers, both Lutheran and Calvinistic, held to natural law theory, with one outstanding literary output being Zanchi's On the Law in General, available online here: http://www.acton.org/sites/v4.acton.org/files/pdf/6.1.305-398.SCHOLIA.Zanchi,%20Hieronymus%20D.--On%20the%20Law%20in%20General.pdf. Richard Hooker is also himself Reformed, as has been definitively shown by W J Torrance Kirby and Bryan Spinks.

[2]Summa Theolo. FS Q 94, A 2

[3]Laws of Ecclesiastical Polity 1.3.2

[4]Summa FS Q 91, A 2

[5]Laws 1.3.4

[6]ibid

[7]Summa FS Q 94, A 2

[8]ibid FS Q 91, A 2

[9]Laws 1.5.2

[10]Summa FS Q 94, A 4

[11]Laws 1.10.1

[12]ibid 1.10.13

[13]Institutes 4.20.14-16

[14]Laws 1.8.9

[15]ibid 1.3.4

[16]ibid 1.3.3

[17]William C. Placher's The Domestication of Transcendence is especially good on this point. His second chapter explains how Thomas Aquinas uses reason to show reason's limits. Quoting John Caputo he writes, “The whole elaborate texture of disputatio that he weaves is an exercise in showing the deficiency and infirmity of ratio, in showing that metaphysics is something to be overcome.”

[18]ibid 1.11.3

[19]ibid 1.10.1

[20](New York: Harper and Row,1951), 64.  d'Entreves, a Roman Catholic, is at several points throughout his book forced to confess that it was the Protestants who were most faithful to the medieval tradition.

[21]ibid 67

[22]This general point about the limitation of human government applies as much to ministerial governments as it does to magisterial governments, and the Protestant doctrine of liberty has had to defend itself from clergy as well as kings.

[23]ibid 88

[24]ibid

[25]ibid 120

[26]Institutes 4.20.9

[27]It is also no help to the various Christian thinkers such as D. G. Hart and David VanDrunen who wish to promote their own form of secularism. The traditional understanding of natural law is that it is inseparable from transcendent orientation, since man's nature is toward God. Religion and natural law are not parallel universes which never touch. Further, only the Protestant understanding of nature can provide for the sorts of political freedom that Hart and VanDrunen wish to preserve; nature itself does not provide it. But they too often take as automatic what was only truly achieved through specific historical advance, and deny the religious keystone which holds the structure together.



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Last Updated on Wednesday, 15 December 2010 07:49