Is the New Natural Law Thomistic?

Transcription

1 Is the New Natural Law Thomistic? Michael Pakaluk Abstract. Whether the new natural law theory counts as a plausible interpretation of St. Thomas Aquinas is not a mere antiquarian question in the history of philosophy but is itself a philosophical question, which bears on how we should interpret and assess the NNLT. Through an examination of problems in Germain Grisez influential paper The First Principle of Practical Reason, which proposed an interpretation of Summa theologiae I II, q. 94, a. 2, it is argued that the NNLT is on every major point at odds with Aquinas, such that the NNLT involves a rejection of the classical and Catholic traditions of natural law and not a reformulation, revival, or saving of that tradition. The NNLT gives a flawed account of individual morality, not a Thomistic account of law as binding a community. National Catholic Bioethics Quarterly 13.1 (Spring 2013): The Question and Its Importance I shall argue here that the celebrated interpretation by Germain Grisez in his 1965 paper, The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1 2, Question 94, Article 2 1 is unsound and may be shown to be so. Suppose that it is: What then? A defender of the new natural law theory could retort that the conclusion is irrelevant, because the history of philosophy is one thing, but philosophy is something else, and the NNLT is advanced as a contribution to the latter. That the NNLT originated in an article interpreting St. Thomas Aquinas Michael Pakaluk, PhD, is a professor of philosophy and chairman of the philosophy department of Ave Maria University in Ave Maria, Florida. 1 Germain Grisez, The First Principle of Practical Reason: A Commentary on the Summa theologiae, 1 2 Question 94, Article 2, Natural Law Forum 10 (1965): The National Catholic Bioethics Center 57

2 The National Catholic Bioethics Quarterly Spring 2013 hardly means that it must be viewed now as such. 2 Moreover, since Aquinas was fallible, if his view in Summa theologiae I II, q. 94, a. 2 (henceforth, 94.2 ) were shown to be different from the truth, then so much the worse for his view. But not all NNL theorists thus dissociate their theory from Aquinas. Grisez, in his most authoritative exposition of the NNLT, attributes it to Aquinas and contrasts it with the voluntaristic approach developed by Francisco Suarez. 3 He recommends his 1965 article for its explanation of the Thomistic approach. 4 So Grisez at least continues to claim that the NNLT gives an authentic interpretation of Aquinas on natural law. And this is unsurprising, because Aquinas is the great synthesizer of classical and Christian thought. To break radically with a central view in Aquinas, about so fundamental a matter, is to risk breaking also with the considered judgments of Aristotle, the Stoics, the Roman jurists, Augustine, and Sacred Scripture. No Catholic who believed in an inheritance of shared wisdom deriving from such sources would sever the history of philosophy from philosophy. Indeed, the NNLT rose to prominence through proposing what seemed a stimulating new interpretation of Aquinas, and so it would be correspondingly weakened if it turned out that that early attention had been misguided. In fact, why should we have regarded the NNLT as a theory of law, except that the 1965 paper gives an interpretation of Aquinas specifically on law? With its talk of basic goods and principles of practical reason pertaining to an individual, why is not the NNLT simply a moral theory? There are many moral theories put forward by philosophy professors: Why should this one in particular get introduced into discussions of philosophy of law? Indeed, what recommends this moral theory in particular to Catholics, other than the purely negative consideration that it is not consequentialist? Again, since the 1965 paper is the link between the NNLT and the Catholic intellectual tradition, if that paper gives no sound interpretation of Aquinas, then the NNLT gains no support from that tradition, except incidentally. It would be as if Aquinas had never existed and all the work of showing that there was some reality which could rightly be called natural law was to be accomplished merely by the arguments of the NNL theorists. Could the NNLT support that onus probandi? Suppose no one was on the lookout for first principles of practical reason which corresponded to what Aquinas asserts in 94.2: then who would think (for example) that the philosophical commonplace, that some goods are not purely instrumental, implied the existence of a natural law? Or would anyone have supposed that, because health is not an instrument in the manner of legal tender, the precept health is a good to be done (in just that unusual form, Grisez insists) is a basic and selfevident principle of practical reason? 2 See John Finnis and Germain Grisez, The Basic Principles of Natural Law: A Reply to Ralph Mclnerny, American Journal of Jurisprudence 26.1 (1981): Germain Grisez, The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Quincy, IL: Franciscan Herald Press, 1983), See also John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 43 47, 54 57,

3 Pakaluk Is the New Natural Law Thomistic? Boundaries on the Interpretation of 94.2 Often one may set boundaries to a correct interpretation of text, without deciding how all the details of the passage are to be explained. Doing so is especially important for Aquinas, because he writes in articulated sections which contribute to some carefully designed whole: the arguments of any section should be interpreted relative to that section s purpose. So, what is the purpose of 94.2? Aquinas says it concerns what precepts are precepts of the natural law 5 and whether the natural law contains one precept or many precepts 6 slightly different questions, but obviously if one s manner of identifying the precepts leads to the conclusion that there is more than one precept, then in answering the first form of the question we answer the second. Good enough, but what is the philosophical puzzle (aporia) which motivates this article? A grasp of the puzzle is necessary for a grasp of the solution. 7 The puzzle is this: All human law is derived from the natural law, yet we see that only some human laws are said to be of (or from) the law of nature, and, moreover, these constitute a rather disparate class, involving laws against suicide, concerning marriage, and concerning worship of God. 8 Why then do only such laws get picked out as of the law of nature, and how do they constitute a true class, which warrants our use of the singular, the or a law of nature? The puzzle is a twofold difficulty about how to reconcile a philosophical thesis ( all human law is derived from the natural law ) with what we are wont to say (namely, that particular kinds of precepts involve the law of nature); also, why we are wont to speak of a law of nature, despite our apparently recognizing a plurality of such precepts. Aquinas s solution is clever and involves two philosophical innovations: first, he extends natural law to cover three natural inclinations, not only two, as had been traditional; second, he appeals to a fundamental law, which he calls the first precept of law. The first innovation can be discerned if we observe how Aquinas proceeds, in contrast, in the passage from the Sentences Commentary just cited. In that passage, Aquinas defines natural law in such a way that it can extend to only two areas of law: because man is by nature a rational animal, there is one group of precepts of natural law corresponding to the genus, animal, and another corresponding to the species, rational. But in 94.2, perhaps because he will need to deal later in the Summa with 5 Aquinas states this in the introduction to q. 94: quae sint praecepta legis naturalis. This and all other translations of Aquinas in this essay are my own, unless otherwise noted. 6 For example, Videtur quod lex naturalis non contineat plura praecepta, sed unum tantum, in obj See Aristotle, Metaphysics, book III, part 1. 8 The occasions are few where Aquinas asks whether a precept is of the law of nature (de lege naturali; de lege naturae) or pertains to the law of nature (pertinent ad ius naturale): basically Summa theologiae (ST) II II, q. 64, a. 5 corpus; ST II II, q. 85, a. 1 corpus; and Scriptum super libros sententiarum IV, d. 33, q. 1, a. 1 corpus, referred to hereafter as Sentences Commentary. 59

4 The National Catholic Bioethics Quarterly Spring 2013 suicide also being contrary to the natural law, Aquinas innovates by referring to a third aspect of human, namely, an inclination to self-preservation which belongs to us simply in virtue of our being a natural substance. The second innovation, as mentioned, is his appeal to a fundamental law, which he calls the first precept of law, which is that good is to be done and sought after, and evil is to be avoided. This fundamental law is sometimes referred to, incorrectly, as the first principle of practical reason ; Aquinas refers to it, significantly, as the first precept of the law, which he indeed says is a first or ultimate principle which is in practical reason. 9 The nature of the puzzle requires that we understand this fundamental law in such a way that, first, it explains the attribution of various laws within the three classes mentioned to a natural inclination of human nature (Aquinas does not say that there are only three precepts of the law of nature, corresponding to the three natural inclinations), and second, it groups together only the laws within these classes and not anything else (since this fundamental law is meant to explain why there is a single body of law which can be called natural law). The first precept of law has to be interpreted such that it yields not just three precepts (that is, one for each inclination) and not all precepts (that is, any precept at all, in the manner of a completely general principle of practical rationality). Yet this purpose of 94.2 has been obscured by inaccurate translations. 10 Consider for example this paragraph from near the end of the corpus: Tertio modo inest homini inclinatio ad bonum secundum naturam rationis, quae est sibi propria, sicut homo habet naturalem inclinationem ad hoc quod veritatem cognoscat de Deo, et ad hoc quod in societate vivat. Et secundum hoc, ad legem naturalem pertinent ea quae ad huiusmodi inclinationem spectant, utpote quod homo ignorantiam vitet, quod alios non offendat cum quibus debet conversari, et cetera huiusmodi quae ad hoc spectant. Two interrelated questions, which look at first to be mere quibbles, are crucially important here: (1) what should we regard as the referent of the emphasized pronoun, and (2) how should pertinent be understood in this context? With reference to the first question: it seems we should take the pronoun to mean those precepts, as regards which utpote then serves to introduce examples, and spectant accordingly tells us what these precepts are solicitous for. The examples of precepts which he gives are avoid ignorance and do not harm those among whom you must live (that is, your neighbor). What these precepts are solicitous for are the good of knowledge of God and the good of living in society with others. With 9 In the corpus of the article, as well as ad 2 and ad 3, it is simply the first precept, namely, of law. 10 In confirmation of the emphasis placed on the study of original languages by the motu proprio of Pope Benedict XVI, Latina lingua (November 10, 2012), n. 2: Nostris quoque temporibus Latinae linguae et cultus cognitio perquam est necessaria ad fontes vestigandos ex quibus complures disciplinae ceteroqui hauriunt, exempli gratia Theologia, Liturgia, Patrologia et Ius Canonicum. 60

5 Pakaluk Is the New Natural Law Thomistic? reference to the second question: it seems that pertinent means is assignable to or is classified as (as the verb typically means in other contexts), so that the claim is that the identified precepts, and others like them, are assignable to the law of nature. So careful attention to Aquinas s language shows that his concern is with why we pick out some precepts, among those precepts already familiar to us by custom or in positive law, and assign those in particular to the law of nature. The passage should accordingly be rendered as follows: There is present in man an inclination to good in a third way, corresponding to the nature of [his power of] reason, which is something which belongs only to man in the way, namely, that man has a natural inclination to this [good], that he know the truth about God, and to this [good], that he live in society. And corresponding to this [aspect of man s nature], those [precepts] which are solicitous for that sort of inclination are assignable to the law of nature, for example, that man should avoid ignorance, that he not harm those among whom he must live, and other [precepts] like that, which are solicitous for that [aspect of man s nature]. Note that for the sake of accuracy, good 11 must be supplied in two places, and precepts too where relevant. The Dominican Fathers render the passage in a way that may tend to suggest, misleadingly, that Aquinas hold that goods, rather than precepts, belong to the natural law: Thirdly, there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination. 12 The chief insufficiency of this translation is in the phrases, whatever pertains to and other such things, which render constructions which are not indeterminate in Aquinas s exposition but which refer to precepts Because ad hoc stands in for ad bonum beforehand. Similarly, we must supply something like aspect of man s nature, because secundum hoc stands in for secundum naturam rationis. Secundum suggests a mapping or correlation and is used by Aquinas here precisely as Aristotle uses kata. 12 Thomas Aquinas, Summa theologica, trans. Fathers of the English Dominican Province (New York: Benziger Brothers, 1947), I II, q. 94, a. 2, emphases added. 13 Other inaccuracies, emphasized above, contribute to the misleading sense: nature of his reason for naturam rationis is misleading, because what Aquinas means is, strictly, man s nature as involving reason (that is, the genitive, rationis, is what grammarians call a defining genitive ); thus for sicut is off the mark, because sicut is coordinated with modo and illustrates the manner; to know the truth about God, and to live in society are misleading because the translators have concluded that ad hoc, quod is merely a circumlocution rather than used precisely to reintroduce bonum; finally, pertains and regarding for spectant miss the sense. 61

6 The National Catholic Bioethics Quarterly Spring 2013 Grisez translation in his 1965 article similarly fails to distinguish when Aquinas is referring to goods and when he is referring to precepts: Third, there is in man an inclination to the good based on the rational aspect of his nature, which is peculiar to himself. For example, man has a natural inclination to this, that he might know the truth concerning God, and to this, that he might live in society. In accordance with this inclination, those things relating to an inclination of this sort fall under natural law. For instance, that man should avoid ignorance, that he should not offend those among whom he must live, and other points relevant to this inclination. 14 So a commonly used translation obscures the purpose of 94.2, and various inaccuracies in Grisez translation tend to support the mistaken view that basic precepts are meant to correspond to putative basic goods. Miscues in the Grisez Interpretation If in some passage Aquinas insists upon drawing a distinction, yet an interpretation of that passage overlooks or conflates the distinction, or treats it as unnecessary, then the interpretation is to that extent unsound. But there are several important distinctions in 94.2 which the Grisez interpretation gets wrong in such ways. The Distinction between Precepts of the Natural Law and Natural Inclinations Here is Grisez on the passage just examined: Nature is the given from which man develops and from which arise tendencies of ranks corresponding to its distinct strata. These tendencies are not natural law; the tendencies indicate possible actions, and hence they provide reason with the point of departure it requires in order to propose ends. The precepts of reason which clothe the objects of inclinations in the intelligibility of endsto-be-pursued-by-work these precepts are the natural law. Thus natural law has many precepts which are unified in this, that all of these precepts are ordered to practical reason s achievement of its own end, the direction of action toward end. 15 In the passage, Aquinas distinguishes between the natural inclinations which point toward a goal, and which therefore are naturally known to be good, and precepts which promote such a goal, or hinder what is contrary to it. In contrast, Grisez, consistent with his translation, fails to distinguish the goods from the precepts. Grisez will later go on to claim that there are seven or more inclinations or basic goods for which we strive. 16 These inclinations, he says, set down no ends for us but only indicate possible actions, and it is practical reason, not human nature, which proposes ends. When practical reason proposes an end in this way, Grisez claims, then 14 Grisez, First Principle of Practical Reason, 171, emphases added. 15 Ibid., There are seven categories of basic human goods which perfect persons and contribute to their fulfillment both as individuals and in communities, Grisez, Christian Moral Principles,

7 Pakaluk Is the New Natural Law Thomistic? a precept of the form, this end is to be pursued, is the result, and only precepts of that form constitute the natural law. The Distinction between Known to Experts and Known to All Aquinas in 94.2 distinguishes between propositions known in themselves by experts alone, and those known in themselves by everyone (communiter omnibus). Grisez basically ignores the distinction, saying that Aquinas introduces it only to clarify the meaning of self-evident. 17 Why does Aquinas draw the distinction? Aquinas s discussion of natural law is embedded in his general treatment of law, which he defines as (i) a precept of reason (ii) ordering actions to the common good, (iii) set down by someone with responsibility for the common good, and (iv) promulgated. 18 The natural law, if it is law, must satisfy all four conditions. In q. 94, a. 1, where he argues that the natural law consists of precepts rather than habits of affirming precepts, he effectively claims that it satisfies the first condition. In 94.2 one of his incidental concerns is to explain the natural law in such a way that it satisfies the other conditions: hence his concern to show that the terms which compose a precept of natural law are naturally known, as, indeed, the natural law is promulgated precisely through its being naturally known. 19 If the precepts of the natural law were not known simply through someone s being a human who develops in typical circumstances, they could not be said to have been promulgated to the human race. 20 Grisez oversight seems symptomatic of a shortcoming in his interpretation, namely, that it construes 94.2 as discussing not law but rather an individual s prudential reasoning. Indeed, the precepts which Grisez believes Aquinas has in mind, such as that health is to be sought (namely, by me), evidently fail to satisfy the definition of law. 21 The Naturally Known as Distinct from What Is Known in Itself So for Aquinas the natural law, since it is law, must be promulgated. The natural law is also the basis of all human law. The promulgation of the natural law consists in its being naturally known to all. But its being the basis for all human law requires that its propositions be known not through other precepts of law. For a proposition to be naturally known, its terms must be naturally known. For Aquinas, everyone naturally knows what man is; but to know what man is is to know 17 Grisez, First Principle of Practical Reason, ST I II, q See ST I II, q. 100, a. 4, ad 1: The first general precepts of the law of nature are known in themselves to anyone who has natural reason, and they stand in no need of promulgation. (See also a. 3 corpus and q. 100, a. 11 corpus.) 20 Presumably communiter in communiter omnibus indicates that everyone s access to it is of the same manner, namely, naturaliter. 21 In Christian Moral Principles, Grisez gives these precepts the more appropriate appellation of fundamental principles of morality. 63

8 The National Catholic Bioethics Quarterly Spring 2013 the most basic kind of thing that he is, namely, a being in the category of substance (rather than, say, a quality such as whiteness), as well as his genus ( animal), and his species (rational). Indeed, the definition of man as a natural substance which is a rational animal reveals what is known, when someone knows what man is. However, anything that has a nature, ipso facto has an inclination in virtue of its having this nature. 22 Hence to know something s nature is to know what that thing is inclined to in virtue of its nature (for man, in three corresponding ways). Thus, if what man is is naturally known, then what man is inclined to, in virtue of being man, is also naturally known. But we all naturally grasp that to be a good is to be a goal. Therefore, those things that are naturally good for man are also naturally known. Hence the terms which compose the precepts of the natural law are naturally known to everyone, and therefore so are the precepts themselves. Yet Grisez interpretation finds no room for the distinction between a proposition s being naturally known (naturaliter nota) and its being known in itself (per se nota). He conflates these, speaking only of the self-evidence and intelligibility of what he takes to be the basic precepts of the law of nature. For Aquinas, we can know what is good for man, and our judgments about what things are good for man are judgments about the world (which is why it becomes an important question for Aquinas whether this knowledge is typically attained only by experts or by people in general). But for Grisez, to judge that certain things are good is a matter of giving expression to inclinations within practical reason: In the case of theoretical knowledge, the known has the reality which is shared before the knower comes to share in it in theory the mind must conform to facts and the world calls the turn. In practical knowledge, on the other hand, the knower arrives at the destination first; and what is known will be altered as a result of having been thought about, since the known must conform to the mind of the knower. The mind uses the power of the knower to see that the known will conform to it; the mind calls the turn. 23 The Known in Itself as Distinct from the Naturally Known Two general truths which are said to be known in themselves enter into Aquinas s account: good is what all things desire, and good is to be done and its contrary, evil, is to be avoided. Aquinas also holds that if a general truth is known in itself, then an instance of that general truth is also known in itself. The first general truth, as mentioned, means something like: to be a good is to be a goal. For Aquinas, this truth serves as a schema which can be applied in different ways, given different conditions. For example, from this is an inclination inherent in the senses one can infer its object is a sensible (or sensual) good, and 22 A natural agent produces a twofold effect on the patient: for in the first place it gives it the form; and secondly it gives it the movement that results from the form. ST I II, q. 26, a. 2 corpus. (See also q. 94, a. 3.) 23 Grisez, First Principle of Practical Reason,

9 Pakaluk Is the New Natural Law Thomistic? from this is an inclination of a thing of that kind one can infer the object of that inclination is good for a thing of that kind. The second general truth is said by Aquinas to be analogous to the principle of noncontradiction. The very purpose of this truth is to construct bridges between judgments about how the world is what things are good and judgments about how the world should be what things ought to be done. Those who maintain that there can be no such bridge owe us an explanation as to how the principle of noncontradiction is possible, since that principle constructs bridges from statements of the form A is F to statements of the form F ought to be affirmed of A and F ought not be denied of A. This second general truth, too, serves as a schema for instances asserted with particular conditions, and in particular: What is good for man is to be done, and its contrary to be avoided, by man. We said that the first principle of law needed to be qualified, for the purposes of 94.2, as to make it especially relevant to the formulation of law, and this qualification captures the relevant restriction. The principle in this form comes into play in Aquinas s account as follows. For Aquinas, what man is is naturally known to all men (communiter omnibus). Hence, that man is a natural substance who is an animal, and rational, is also naturally known. Therefore, that man has three kinds of inclinations, implied by these three aspects of his natural form, is also naturally known. But we grasp the general truth, that to be a good is to be an object of an inclination, simply because we grasp in itself the general truth that a good is a goal. But instances of that truth are also known in themselves: so that the objects of man s natural inclinations are natural goods for man is also something known in itself. (Observe that this truth is known not simply in itself, but also naturally so, because its terms are.) But we also grasp, as known in itself, the general truth that what is good is to be done, and its contrary is to be avoided. Thus we additionally grasp, as known in itself, any instances of that truth, such as that what is good for man is to be done, and its contrary is to be avoided, by man. Therefore, finally, we grasp, as both known in itself and as naturally known, instances of this last claim, that is, where instances of any of the natural goods are supplied for those things that are good for man. That is why a precept such as Man is to avoid the death of man ( Thou shalt not kill ) can both serve as a basic precept (because it is known in itself) and be regarded as promulgated (because it is naturally known). I said that What is good for man is to be done, and its contrary to be avoided, by man, was the particular specification of the first principle in practical reason which would put that principle in the requisite form so that it could serve as the first principle of law. By adding that qualification, we can arrive at precepts which satisfy two other conditions of law, namely, that it consists of precepts which order to the common good since now a common good is specified and advanced (what is good for man), which is advanced by precepts which direct us toward that good (is to be done by man). Grisez interpretation misses the significance of these two general truths. Because it misses the role of natural teleology in Aquinas s account, it fails to 65

10 The National Catholic Bioethics Quarterly Spring 2013 recognize how Aquinas believes that on the basis of natural inclinations we can infer natural goods. Because it insists on a chasm between indicative and prescriptive statements, it fails to recognize how the first precept of law precisely presupposes that there is no such chasm. Ironically, that principle in Aquinas which NNL theorists regard as best testifying to the underivability of ought from is claims is proposed by Aquinas precisely to allow for the derivation of prescriptions of law from descriptions of goods. Grisez overlooking of the relevant qualification in the first precept of law, which makes it serviceable for an account of natural law, is yet another example of his reduction of natural law to a theory of individual morality. The Distinction between the Natural Law As Measure and the Natural Law As Measured Question 94, a. 2 does not address the fourth part of the definition of law, namely, that law is set down by someone with authority for the common good, but its account is consistent with what Aquinas says elsewhere, namely, that the natural law is a participation in the eternal law of God, and that, consequently, in the natural law man both measures and is measured. By the former, Aquinas means that when we articulate precepts of the natural law, our lawmaking coincides with God s directive providence; by the latter, that our articulation of precepts of the natural law is answerable to some standard set by God that the correctness or incorrectness of that articulation depends upon whether it is itself in conformity with law. The picture of natural law reasoning which emerges from 94.2 is of man as a steward of his own nature. He discerns his own nature and, through his reason which itself is a natural power directs himself toward those ends to which his nature inclines. Lawmaking is an art which completes nature, as does any art. Natural law measures because it is man s own articulation, which serves as the standard for all other human laws; but natural law is measured, because its correctness consists in its precepts correctly ordering human actions so as to promote what is aimed at by natural inclinations, and safeguard against what is contrary. One need only add that God is naturally known as the author of nature, which Aquinas also holds, and then, on this account, the natural law is set down by God. 24 On Grisez interpretation, in contrast, there is no sense in which the natural law is measured, as it is not articulated as in conformity with anything. Grisez account describes the prudential reasoning of an individual in such a way that perhaps, after the fact, it could be accounted for in relation to God and God s purposes, 25 yet the account requires no reference to any lawgiver besides man. 24 ST I, q. 2, a. 3 corpus. 25 See Finnis, Natural Law and Natural Rights, 390: The theory of Eternal Law... must not be treated as a theory which could guide investigation and verification of suggested norms... rather, it is a speculation about why those norms whose holding has been appropriately verified or established do hold. See all of chapter 8. 66

11 Pakaluk Is the New Natural Law Thomistic? Conclusion The foundational text of the NNLT is Grisez interpretation of Aquinas. Some proponents of the NNLT, including its leading expositor, claim that that interpretation is Thomistic understandably so, because if a connection with Aquinas is broken, then the NNLT becomes one among many doubtful theories in moral philosophy. Yet Grisez interpretation fails to satisfy even minimal conditions of a sound interpretation and on every fundamental point is at odds with Aquinas. Fifty years later we can see that it was a misapprehension, if ever the NNLT was associated with the tradition of natural law. A clear assessment requires that we acknowledge that the NNLT abandons that tradition and does not save it. 67

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