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 It is not holy to alter this law, nor is it permitted to modify any part of it, nor can it be entirely repealed.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.