On Teaching Natural Law
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By J. Budziszewski, April 29, 2011 in Uncategorized

If it is for a just man and a good man to obey the laws, which laws?  Whichever there will be?  But virtue does not accept inconsistency, nor does nature allow variation; the laws are assented to because of penalty, not because of our justice.  Natural justice, therefore, holds nothing.

  -- Philus, objecting to natural law, in Marcus Tullius Cicero, On the Commonwealth, 3.18.

Indeed true law is right reason congruent with nature, spread among all people, constant, everlasting; it calls to duty by ordering and deters from by forbidding.  Nevertheless neither does it order or forbid upright men in vain, nor does it move the wicked by ordering or forbidding.  It is not holy to alter this law, nor is it permitted to modify any part of it, nor can it be entirely repealed. In fact we cannot be released from this law by either the senate or the people.  No Sextus Aelius should be sought as expositor or interpreter.  There will not be one law at Rome, another at Athens, one now, another later, but one law both everlasting and unchangeable will encompass all nations and for all time.  And one god will be in common as though he were a teacher and general of all people.  He will be the author, umpire, and provider of this law.  He who will not obey it will flee from himself and, defying human nature, by reason of this very fact will suffer the greatest penalties, even if he escapes other things that are thought to be punishments.

                                                                               -- Laelius, responding, in Cicero, Ibid., 3.33.

Natural law is one of those momentous, civilization-forming ideas of which no one can be ignorant and yet claim to be educated.  By this standard, our universities produce very little education.  Not only have most graduates heard next to nothing about natural law, but the little that they have heard is mostly wrong.

Part of the problem is perennial.  The misconceptions people hold about natural law in our age are much like those they have held in every age, and teachers succumb to them too.  Ulpian, the Roman jurist, taught that natural law is "what nature has taught all animals," a remark which, though not wholly wrong, radically obscures the difference between the rational nature of a human being and the subrational nature of, say, a dog.  In the middle ages, Thomas Aquinas found it necessary to refute some of the errors that result -- for example that marriage isn't natural because "in other animals the sexes are united without matrimony," or that incest is natural because "brute animals copulate even with their mother" (Summa, Supp., Q. 41, Art. 1, and Q. 54, Art. 3).  But don't we still hear these mixed-up ideas?  In the immortal words of the Bloodhound Gang song, "The Bad Touch," on the album Hooray for Boobies,

You and me baby ain't nothin but mammals
So let's do it like they do on the Discovery Channel.

I can assure you that the perception of the difference between rational and subrational nature is not much more subtle and discerning in most university classrooms than in the lyrics of the Bloodhound Gang.

Another part of the problem is historical.  In the name of the natural law, the early modern thinkers inspired revolutions, as in the U.S. Declaration of Independence, which famously invokes "the laws of nature and nature's God."  Yet these moderns also thinned and flattened the classical natural law tradition.  First, they threw out most of its theoretical equipment, such as synderesis or deep conscience, natural teleology, and a richly layered view of human happiness.  Next, they replaced it with altogether different equipment, such as a brutalized view of happiness and the fiction of original anarchy.  Because the new equipment couldn't do the job, the idea of natural law came to seem a mere antiquarian curiosity.  My students say, "Natural law?  That's Hobbes' idea, right?  That unless we cut a deal, we'll all kill each other, right?"  Wrong.  That may not be far from Hobbes' idea, but it's far from what the classical thinkers meant by natural law.

Two pedagogical lessons may be drawn from these twin problems.  The first is that even though the foundational principles of the natural law are at some level self-evident, we can't reach the level of self-evidence until the muck of confusion is cleared away; teaching requires unteaching.  The second is that even though the natural law itself doesn't change, our grasp of it changes all too easily; to teach the thing, which is unhistorical, we must also teach the history of bad theories about the thing.

The American Studies Center encourages website collaborators to contribute teaching resources, such as sample course syllabi, and I have offered the preceding remarks by way of preface to a syllabus I've posted on this website for a 15-week seminar on natural law.  In order, the fourteen substantive units in the seminar are (1) an introduction to the concept of natural law: (2) some early statements of natural law: (3) the classical synthesis, I: (4) the classical synthesis, II: (5) late medieval and early modern experiments and departures: (6) natural law, international law, and war, I; (7) natural law, international law, and war, II: (8) natural law and human rights: (9) the American reception of the natural law tradition: (10) the convoluted course of natural law in American jurisprudence: (11) some influential rejections of the idea of natural law: (12) various defenses and restatements of the idea of natural law: (13) selected Catholic thought and Catholic magisterial teaching on the natural law tradition: and (14) the Protestant, Jewish, and Islamic reception of the natural law tradition.

Although the seminar is pitched at the graduate level, it can also be sliced and diced to design a large number of different undergraduate courses.  To mention just a few of the possibilities:  Units 1, 2, 3, 4, and 12 could serve as the nucleus for a course just on the classical natural law tradition; units 5, 9, and 10 could serve as the nucleus for a course just on natural law in American political development; units 3, 4, 13, and 14 could serve as the nucleus for a course just on religion and natural law; and units 6, 7, and 8 could serve as the nucleus for a course just on natural and international law. 

See the syllabus here.

Tags: Philosophy

8 Comments
John Uebersax on Apr 29, 2011 at 12:53 pm

Natural Law is the Logos of the Stoic philosophers. Written laws are attempts -- always extremely fallible -- to codify Natural Law. For the Stoics (and perhaps Cicero)the main ethical imperative is to "follow Nature" (i.e., to be conformed to the Logos). Usually (hopefully) that also means following the written law -- but by no means always; and in case of conflict, ethics commands conformity to Natural Law, not written law. Ultimately the problem is a psychological one, not a legal one: how does one attune the moral and intellectual apparatus to discern the inner promptings of Logos?

Lee Trepanier on May 5, 2011 at 6:22 am

I wonder whether you could discuss your understanding (as well as cite any relevant works) about the relationship between natural law and natural rights. It's an issue that has always interested me, although I never had found the time to devote to it.

J Budziszewski on May 5, 2011 at 2:39 pm

The ideas are simple, but the terminology has changed and can be confusing.

Classical natural law thinkers focus on objective right, which is the quality something has when it conforms to the requirements of justice. Example: Thomas Aquinas says that "the 'right' or the 'just' is a work that is adjusted to another person according to some kind of equality. Now a thing can be adjusted to a man in two ways: first by its very nature, as when a man gives so much that he may receive equal value in return, and this is called 'natural right.'" (Summa Theologiae, II-II, Q. 57, Art. 2.)

Early modern, non-classical natural law thinkers focus on subjective right, which is an individual's faculty or power of doing something. Example: Thomas Hobbes says that "The right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto." (Leviathan, Chapter 14.)

Not everything I can do is right to do. To put it another way, not all subjective rights -- powers or faculties something -- possess the quality of objective right. Those which do, however, should be protected by positive law. These are sometimes called natural rights, plural, but in a sense which is obviously different than Hobbes' "right of nature."

Anonymous on May 10, 2011 at 7:51 am

Lee,

Anscombe has an interesting essay on rights that helps get at your question. It's in volume 3 of her collected papers (the Blackwell collection, as opposed to the more recent one). For Anscombe, a right is an empowering can with respect to an actor and a stopping cannot with respect to someone who would interfere with an empowered actor. That which empowers the actor and prohibits others from interfering with his action are necessities--that is, I am empowered (I act with potestas) to do that which is necessary for me and others are lack the right or authority to interfere with my action in such a case. Given that Anscombe was a Catholic who affirmed the natural law, it would seem that these necessities to which she refers are necessities that flow from human nature--in conjunction with an obligation to pursue that which is perfective of human nature as such. The relevant essay in the Anscombe volume is on the authority of the state--which she defines as a right to govern.

Anonymous on May 10, 2011 at 8:15 am

John,

I'm not sure what to make of your comment. Even the Stoics wouldn't have referred to the logos as their own. Rather, they would have referred to a logos, about which they wrote and spoke. But logos has a longer and more interesting history in Western thought than merely the Stoics. It shows up as early as Heraclitus. It's also in the work of Plato--the city in logos (or speech or reason, depending on the translation of the Republic). And Christianity also affirms a divine logos that becomes flesh--but that logos that becomes incarnate is nevertheless logos--both before and after that incarnation. And this logos that becomes flesh, in Christianity, is the same logos by which the world was made. Jewish rabbis, during the Hellenistic period, would also speak of the logos of God. And it seems apparent that these theorists had something different than the Stoic conception in mind. All that to say--Logos is one thing and Stoic thought about Logos another. And this is how anyone who affirms the existence of the logos must speak.

As well, Jewish and Christian natural law thinking is not some mere recapitulation of Stoic thought. Nor is it a development of it. From the Judeo-Christian vantage, the Stoics may have gotten some things right. But they also got a lot wrong. And so the Stoic notion of natural law has crucial incompatibilities with the Christian and Jewish conceptions. Among other things, not until something like the God of Abraham is affirmed as the lawgiver is it possible to move from mere natural right to a full blown natural law with full blown obligation. Part of the essence of law for Aquinas is its binding power--the fact that it binds in conscience. And the Stoics, like Aristotle, never fully move from merely right to obligatory. I think J. might well agree with this point--thus the emphasis on the lawgiver that appears in his work. C. Stephen Evans makes a point along these lines in a recent book with Oxford (though Evans makes a crucial mistake in his presentation of Lisska's construction of Aquinas). Finally, I think Aquinas would agree. For while it is blasphemous, according to Aquinas, to reduce justice to the will of God, insofar as God's will is not seen as flowing from his wisdom (so long as we're talking about God willing this or that), Aquinas also makes the divine will or prescription a necessary condition of moral obligation. Law is made by the one with the care of the community. That which distinguishes murdering Isaac on the mountain from legitimately taking his life, given that God is Lord of life and death, is the command of God. But the Stoics had no room for the command of God in addition to that which was right by nature. So Aquinas is a natural law theorist. And he is not a voluntarist, as Ockham would be. But he's no Stoic either.

J Budziszewski on May 10, 2011 at 8:21 am

Just a little addition to the anonymous posting above, concerning a point that might not be fully clear from Anscombe's idea of the authority of the state as a right to govern. This isn't just a right to issue a command and back it up with a sanction. According to Thomas Aquinas, a true law (an ordinance of reason, for the common good, made by the one who has care of the community, and promulgated or made known) actually "binds in conscience" -- it generates an obligation to obey. So we are not speaking only of a right to issue a command and back it up with a sanction. We are speaking of a power to generate an obligation.

Sometimes, of course, the commands of the state merely back up something already present in the natural law, for example "Do not murder." This is called conclusion from premises. But sometimes they add something by a more detailed specification of something that in the natural law is more general, for example "For the sake of safety, drive on the right side of the road." This is called determination of generalities.

Last updated on May 10, 2011 at 10:31 am.
Lee Trepanier on May 11, 2011 at 4:58 am

Thanks to both, as this has been very helpful (and stimulating, too!).

J Budziszewski on May 11, 2011 at 1:51 pm

1. Lee, you're most welcome.

2. Anonymous remarks that although there is something very right in the Stoic notion of natural law, there is something very wrong in it too. I agree, but let's expand on that. Here is the part that is right: The Stoics affirmed a divine mind that rules the universe, a mind of which the natural law is the expression. Having minds ourselves, they thought, we ought to follow this law, and we ought to do so not instinctually, as animals do, but deliberately.

Now begin the problems. In the first place, the Stoics failed to recognize that mind and personhood go together -- that every mind is someone's mind. Moreover, they failed to distinguish the divine mind from the universe it ruled, so the sense in which it did rule the universe remained unclear. Still worse, they were materialists, and being materialists, they were unable to distinguish mind from matter; they imagined the divine mind merely as a finer sort of matter permeating the coarser sort which makes up the rest of the cosmos -- something like dye dissolved in a glass of water. Finally, they were determinists. Nothing in the universe is free, the human mind included. Thus, insist as they might that human beings should follow the natural law deliberately rather than instinctually, in the end they were unable to explain how the deliberate way of following it is different from the other.

Yet they taught better than they knew. From time to time they gave utterance to insights far beyond what their faulty philosophy could have led them to by itself. It was through Stoic influence, for example, that Marcus Tullius Cicero wrote the following great lines, which sound almost Christian, and have been quoted by Christians since Lactantius (Institutes, 6.8.): "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment." (De Republica, Book 3.)

These thoughts go beyond what Cicero can actually explain. I would say that they depend less on the defective Stoic theory of the natural law than on the experience of the fact of natural law -- written, as St. Paul said, on the heart (Romans 2).

about the author

J. Budziszewski
J. Budziszewski

Dr. Budziszewski (Ph.D. Yale, 1981) is a professor in the Departments of Government and Philosophy at the University of Texas at Austin.  An authority on natural law, he is especially interested in moral self-deception -- how we tell ourselves that we don't know what we really do.  He also studies problems that arise at the four-way intersection of political and ethical philosophy and theology, for example the status of natural law in Christianity, Judaism, and Islam; the relation between faith and reason; the problem of religious toleration; the incoherence of liberal "neutrality"; and whether the old saw that civil society is more secure on the "law but solid" ground of selfishness than on civic virtue is true or false (can we really have a better government than we deserve?).

Author of numerous articles in both scholarly and popular periodicals, Dr. Budziszewski also has numerous books to his credit, including Written on the Heart: The Case for Natural Law (1997, winner of a 1998 book award from Christianity Today), The Revenge of Conscience: Politics and the Fall of Man (1999), What We Can't Not Know: A Guide (2003), Evangelicals in the Public Square (2006), and The Line Through the Heart: Natural Law as Fact, Theory, and Sign of Contradiction (2009). His newest work, On the Meaning of Sex, will be published in November 2011 by ISI Books.