natural law essay intro

A Level Philosophy & Religious Studies

Natural Law ethics

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Natural law ethics goes back to Aristotle and his theory of telos; that everything has a nature which directs it towards a particular end goal. Aquinas Christianised this idea, adding that it is the Christian God who set a thing’s telos according to his omnibenevolent plan for the universe.

Christian ethics is most associated with the commands and precepts found in the Bible. Aquinas’ contribution was to argue that telos is also a source of Christian moral principles. Human nature has the God given ability to reason which comes with the ability both to intuitively know primary moral precepts and to apply them to moral situations and actions. Following this ‘natural law’ is thus also an essential element of living a moral life.

Aquinas was influenced by Aristotle’s views that there is a natural end to all beings. Everything has a purpose ( telos ) built into it by its nature. The nature of a thing determines the behaviours that are ‘natural’ to it. An acorn naturally grows into an oak tree, because of its inherent nature. Whereas Aristotle thought the final cause of all things was the prime mover, Aquinas claimed that it was the Christian God. The telos/end/goal of rational beings is the goodness of God, which for us involves glorifying God by following God’s moral law.

Ethics is therefore about using reason to discover the natural law within our nature and conforming our actions to it. God designed the universe to operate according to his divine plan by instilling telos in every being, to direct it towards its good end. Human beings are unique in that we have free will and are thus capable of either following or rebelling against the divine plan. Following God’s natural law results in flourishing (eudaimonia) both for individuals and society. Disobeying what is naturally good for us has the opposite effect.

“the light of reason is placed by nature in every man, to guide him in his acts towards his end”. – Aquinas.

The four tiers of law

The ultimate source of moral goodness and thus law is God’s omnibenevolent nature, which created and ordered the universe with a divine plan, known as the eternal law. However, that is beyond our understanding. We only have access to lesser laws that derive from the eternal law.

The eternal Law . God’s plan, built into the nature of everything which exists, according to his omnibenevolent nature.

The divine law – God’s revelation to humans in the Bible.

The natural law – The moral law God created in human nature, discoverable by human reason.  

Human law – The laws humans make which should be based on the natural and divine law. Human law gains its authority by deriving from the natural and divine law which themselves ultimately derive authority from God’s nature.

“Participation of the eternal law in the rational creature is called the natural law”. – Aquinas

The Primary Precepts & Synderesis

Reason is a power of the human soul. Synderesis is the habit or ability of reason to discover foundational ‘first principles’ of God’s natural moral law.

“the first practical principles … [belong to] a special natural habit … which we call “synderesis” … is said to incite to good, and to murmur at evil, inasmuch as through first principles we proceed to discover, and judge of what we have discovered.” – Aquinas

The first principle synderesis tells us is called the synderesis rule: that the good is what all things seek as their end/goal (telos). This means that human nature has an innate orientation to the good.

“This therefore is the principle of law: that good must be done and evil avoided. ” – Aquinas

Further to this, through synderesis we learn the primary precepts: worship God, live in an orderly society, reproduce, educate, protect and preserve human life and defend the innocent. These primary precepts are the articulation of the orientations in our nature toward the good; the natural inclinations of our God-designed human nature, put into the form of ethical principles by human reason. Simply having reason allows a being to intuitively know these precepts. We are all born with the ability to know them.

Secondary precepts & conscientia

“there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles.” – Aquinas.

Conscientia is the ability of reason to apply he primary precepts to situations or types of actions. The judgement we then acquire is a secondary precept. E.g euthanasia: the primary precepts don’t say anything about euthanasia exactly, but we can use our reason to apply the primary precepts to euthanasia, and realise that it goes against the primary precept of protecting and preserving human life. Arguably it even disrupts the functioning of society too. Therefore, we can conclude the secondary precept that euthanasia is wrong.

Interior & exterior acts

A physical action itself is an exterior act because it occurs outside of our mind. Our intention; what we deliberately choose to do, is the interior act because it occurs inside our mind.

The point of natural law ethics is to figure out what fulfils the telos of our nature and act on that. By doing so, we glorify God. This cannot be done without intending to do it. A good exterior act without a good interior act does not glorify God because it is not done with the intention of fulfilling the God-given goal/telos of our nature.

The act of giving money to charity is an example of a good exterior act, but is only morally good when combined with the right kind of intention, which would be an interior act. If the intention was only to be thought of as a good person, which is not the right kind of intention, then the action is not truly morally good.

Whether telos exists

It is a strength of telos-based ethics that they are empirical, i.e., based on evidence. Aristotle observed that everything has a nature which inclines it towards a certain goal which he and Aquinas called its telos. It is a biological fact that certain behaviours cause an organism to flourish. Telos thus seems an empirically valid concept.

Weakness: Modern science’s rejection of final causation. Francis Bacon, called the father of empiricism, argued that only material and efficient causation were valid scientific concepts, not formal and final causation. The idea of telos is unscientific.

Aquinas and Aristotle claim every being has a unique essence which gives it a particular end/purpose. The issue is, modern science tells us that things are merely atoms moving in fields of force – i.e., material and efficient causation. The idea that entities have an ‘essence’ and thus a telos is unscientific. Physicist Sean Carroll concludes that purpose is not built into the “architecture” of the universe.

All supposed telos of a thing can be reduced to non-teleological concepts regarding its material structure and forces operating on it (material & efficient causation). There is no basis for grounding telos in God like Aquinas did, or as a required explanation of change like Aristotle did. For example, Aristotle would regard the telos of a seed as growing into a tree/bush. However, we now understand that change as resulting from the seed’s material structure which was itself caused by evolution, not anything like telos. Similarly, if there is anything in human nature which orients us towards certain behaviours, it is only because evolution programmed them into us because they happened to enable survival in our environment, not because of telos. So, Modern science can explain the world without telos. Telos is an unnecessary explanation.

Evaluation defending telos:

Polkinghorne, a modern Christian philosopher and physicist, argued that science is limited and cannot answer all questions. It can tell us the what but not the why . Science can tell us what the universe is like, but it cannot tell us why it is this way, nor why it exists. It cannot answer questions about purpose.

Polkinghorne’s argument is successful because science is limited. It cannot rule out something like a prime mover or God which could provide some kind of telos. If purpose existed, science would not be able to discover it. So, science cannot be used to dismiss the existence of purpose.

Evaluation critiquing telos:

Dawkins responds that it’s not valid to simply assume that there actually is a ‘why’. He makes an analogy: ‘what is the color of jealousy?’ That question is assuming that jealousy has a color. Similarly, just because we can ask why we and the universe exist, that doesn’t mean there actually is a purpose for it.

Dawkins’ argument is successful because it makes use of the burden of proof. Those who claim purpose exists have the burden of providing a reason to think it exists. There is no scientific basis for thinking anything other than material and efficient causation exists. Furthermore, scientists may one day actually explain ‘why’ the universe exists, but even if they don’t, that doesn’t justify a non-scientific explanation of purpose such as telos.

Universal human nature & moral dis/agreement

A strength of Natural law is that it is based on universal human nature. The primary precepts are found in the morality of all societies. For example, not killing for no reason and rules about stealing are universal. Valuing reproduction and education are also universal. Moral thinkers from different cultures came up with similar moral prescriptions such as the golden rule; to treat others as you would like to be treated, which can be found in ancient Chinese Philosophy, Hinduism, Judaism and Christianity. This suggests that moral views are influenced by a universal human moral nature. This is good evidence that we are all born with a moral orientation towards the good (telos), which is the foundation of Aquinas’ theory.

Weakness: If all humans were really born with the ability to know the primary precepts, we should expect to find more moral agreement than we do. In fact, we find vastly different moral beliefs. Furthermore, the disagreement is not random but tends to fall along cultural lines. This suggests that it is actually social conditioning which causes our moral views, not a supposed natural law in human nature. This has been argued by psychologists like Freud. Fletcher argues this shows there is not an innate God-given ability of reason to discover a natural law. He concludes that ethics must be based on faith, not reason (Fletcher’s positivism).

Evaluation defending Aquinas:

Aquinas’ claim is merely that human nature contains an orientation towards the good, it doesn’t involve a commitment to humans actually doing more good than evil, nor to incredibly evil acts or cultures occurring infrequently. Aquinas acknowledges that there are many reasons we might fail to do good despite having an orientation towards it. These include original sin, mistakes in conscientia, lacking virtue and a corrupt culture. So, the fact that there is a core set of moral views found cross-culturally shows his theory is correct. 

Evaluation critiquing Aquinas:

Furthermore, cross-cultural morality might result merely from the basic requirement of a society to function. If anyone could kill or steal from anyone else for no reason whenever they wanted, it’s hard to see how a society could exist. That might create an existential pressure which influences the moral thinkers of a society, yielding prescriptions such as the golden rule. Cross-cultural ethics therefore has a practical reality as its basis, not God.

Alternatively, some of the cross-cultural similarities in moral codes might also have resulted from a biologically evolved moral sense rather than one designed by a God, which would mean they are not related to morality or telos at all.

Aquinas’ Natural theology vs Augustine & Karl Barth

A strength of Aquinas’ ethics is its basis in what seems like a realistic and balanced view of human nature as containing both good (reason & telos) but also bad (original sin). Natural law adds an engagement with autonomy to Christian ethics. Sola scriptura protestants like Calvin regard humans as mere passive receptacles for a set of biblical commands. However, Aquinas argues that God presumably gave humans reason so that they may use it.

Natural theology is the view that human reason is capable of knowing God, in this case God’s moral law. Aquinas defends this by first accepting that original sin destroyed original righteousness, meaning perfect rational self-control. However, it did not destroy our reason itself and its accompanying telos inclining us towards the good.

Only rational beings can sin. It makes no sense to say that animals could sin. Original sin made us sinners, but human nature was not reduced to the level of animals. We still have the ability to reason. Furthermore, Aquinas diverges from Augustine, claiming that concupiscence can sometimes be natural to humans, in those cases where our passions are governed by our reason. So, a comprehensive approach to Christian morality must include the use of reason to discover and act on the telos of our nature.

Weakness: Natural theology places a dangerous overreliance on human reason. Karl Barth was influenced by Augustine, who claimed that after the Fall our ability to reason become corrupted by original sin.   Barth’s argument is that is therefore dangerous to rely on human reason to know anything of God, including God’s morality.   “the finite has no capacity for the infinite” – Karl Barth.   Our finite minds cannot grasp God’s infinite being. Whatever humans discover through reason is not divine, so to think it is divine is idolatry – believing earthly things are God. Idolatry can lead to worship of nations and even to movements like the Nazis. After the corruption of the fall, human reason cannot reach God or God’s morality. That is not our telos. Only faith in God’s revelation in the bible is valid.

Final judgement defending Aquinas:   Barth’s argument fails because it does not address Aquinas’ point that our reason is not always corrupted and original sin has not destroyed our natural orientation towards the good. Original sin can at most diminish our inclination towards goodness by creating a habit of acting against it. Sometimes, with God’s grace, our reason can discover knowledge of God’s existence and natural moral law. So, natural moral law and natural theology is valid.

Arguably Aquinas has a balanced and realistic view, that our nature contains both good and bad and it is up to us to choose rightly.

Final judgement critiquing Aquinas: Barth still seems correct that being corrupted by original sin makes our reasoning about God’s existence and morality also corrupted. Even if there is a natural law, we are unable to discover it reliably. The bad in our nature unfortunately means we cannot rely on the good. Whatever a weak and misled conscience discovers is too unreliable.

Humanity’s belief that it has the ability to know anything of God is the same arrogance that led Adam and Eve to disobey God. Humanity believing that it has the power to figure out right and wrong is what led to the arrogant certainty of the Nazis in their own superiority. This arrogance of natural theology is evidence of a human inability to be humble enough to solely rely on faith.

Whether Religious & Natural law ethics is outdated

A strength of Natural law ethics is its availability to everyone because all humans are born with the ability to know and apply the primary precepts. Regarding those who do not belong to Abrahamic religion the Bible says:   “Gentiles, who do not have the law, do by nature what the law requires … God’s law is written in their hearts, for their own conscience and thoughts either accuse them or tell them they are doing right” (Romans 2:14-15).   So, it is possible to follow the natural law even if you are not Christian and/or have no access to the divine law (Bible).

Weakness: Secularists often argue that biblical morality (divine law) is primitive and barbarous, showing it comes from ancient human minds, not God. J. S. Mill calls the Old Testament “Barbarous, and intended only for a barbarous people”. Freud similarly argued that religious morality reflected the “ignorant childhood days of the human race”.   Aquinas’ Natural law ethics is criticised as outdated for the same reason. Medieval society was more chaotic. Strict absolutist ethical principles were needed to prevent society from falling apart. This could explain the primary precepts. For example, it was once useful to restrict sexual behaviour to marriage, because of how economically fatal single motherhood tended to be. It was useful to simply ban all killing, because killing was much more common. It was useful to require having lots of children, because most children died.   The issue clearly is that all of these socio-economic conditions have changed. So, the primary precepts are no longer useful. Society can now afford to gradually relax the inflexibility of its rules without social order being threatened.

Conservative Catholics often argue that natural law is not outdated because it serves an important function without which society flourishes less. They argue that secular liberal western culture is ethically retrograde because of its abandonment of traditional moral principles like the primary precepts. This shows that we really do need to follow God’s natural law in order to flourish.

Marriages are fewer and less successful. Mental illness increases. Rates of etcetc

People are no longer united by an ethic of devoting our lives to something greater than ourselves. Self-interest and materialistic consumerism is all modern society has to offer by way of meaning and purpose.

“[excluding] God, religion and virtue from public life leads ultimately to a truncated vision of man and of society and thus to a ‘reductive vision of the person and his destiny’”. – Pope Benedict XIV.

Here, Benedict XVI references an encyclical called “Caritas in Veritate”, where he argued that while there is indeed religious fanaticism which runs against religious freedom, the promotion of atheism can deprive people of “spiritual and human resources”. The atheist worldview is that we are a “lost atom in a random universe”, in which case we can grow and evolve, but not really develop morally.

“ideological rejection of God and an atheism of indifference, oblivious to the Creator and at risk of becoming equally oblivious to human values, constitute some of the chief obstacles to development today. A humanism which excludes God is an inhuman humanism. Only a humanism open to the Absolute can guide us in the promotion and building of forms of social and civic life — structures, institutions, culture and ethos — without exposing us to the risk of becoming ensnared by the fashions of the moment.” – Pope Benedict XIV.

So, religious and natural law ethics is not outdated but is a vital societal anchor for morality, meaning and purpose.

Natural law ethics is outdated because Aquinas’ theory was actually a reaction to his socio-economic context and since that has changed, Natural law is no longer relevant.

Aquinas thought that he discovered the primary precepts through human reason, as God designed. However, it’s a simpler explanation that Aquinas was simply intuiting what was good for people in his socio-economic condition. The idea that the resulting principles actually came from God was only in his imagination.

The great strength of religion as a form of social organisation is also its greatest weakness. By telling people that its ethical precepts (such as the primary precepts or sanctity of life) come from God it creates a strong motivation to follow them. Yet, because those precepts are imagined to come from an eternal being, they become inflexible and painstakingly difficult to progress. This makes them increasingly outdated.

The double effect

A single action can have two effects, one in accordance with the primary precepts and one in violation of them. Aquinas claims that such actions can be justified the good effect is intended while the bad effect is “beside the intention”. This is because being a good person involves developing the kind of virtuous character which acts with the intention of following God’s natural law.

Aquinas illustrated this with killing in self-defence. There are two effects; the saving of a life and the killing of a life. Killing someone, which clearly violates the primary precept of preserving human life, can be justified so long as it is an effect which is a secondary effect beside the intention of an action whose other effect was intended and was in accordance with the primary precepts.

There are four generally accepted conditions in modern Catholicism for an action to be justified by the double effect:

The intentionality condition. The good effect must be intended and the bad effect must be ‘besides the intention’. Aquinas illustrated the double effect with the example of killing someone in self-defence. So long as you intended to save your own life, then it is morally permissible to kill someone in self-defence. The bad effect is ‘besides the intention’. 

The proportionality condition. The good effect must be at least equivalent to the bad effect. Saving your life is equivalent to ending the life of the attacker. You can’t use more force than is necessary to save your life – there must be proportionality there too. 

The means-end condition. The bad effect and the good effect must both be brought about immediately – at the same time. Otherwise, the person would be using a bad effect as a means to bring about a good effect – which is not permissible.

The double effect only applies to actions which have two effects – one good, one bad – where both effects are brought about immediately.

The nature of the act condition. The action must be either morally good, indifferent or neutral. Acts such as lying or killing an innocent person can never be justifiable. An attacker would not count as an innocent person.

Whether the double effect is unbiblical

A strength of the double effect is that it helps to resolve seemingly disparate biblical themes. Jesus’ commands were not merely about following certain rules, but also about having the right moral intention and virtue (E.g. sermon on the mount). The double effect provides important clarity to Christian ethics by showing the relation between the important moral elements of intention and following the moral law. Good intention is important, not to the degree of justifying pure violations of the law, but when involved in an action that has a good effect it can justify permitting a bad side effect. 

Weakness: the double effect is unbiblical. Some theologians reject the double effect as unbiblical because God’s commandments are presented as absolute and not dependent on someone’s intention. For those theologians, the distinction between intended effects of actions and merely foreseen effects “beside” the intention has no morally relevant significance. It’s not that intention has no relevance in traditional Christian ethics. Most theologians accept that people are not immoral for consequences of their actions which they could not have foreseen which violate God’s commands. For example if you decide to drive your car at the time a drunk person happened to be out and you ran them over, that would not be considered your fault even through it was an effect of your action. However if you could foresee a bad consequence, the fact that it was a secondary effect beside the effect you did intend doesn’t justify it for theologians who take this view.

Evaluation defending Natural law:

This criticism is unsuccessful because Natural law is different to the Bible. The Bible might be inflexible, but that is the divine law. The natural law in our nature is more flexible because it is in the form of very general precepts which require application and the telos of the natural law is glorifying God, which requires that it be our intention to glorify God – thus showing how intention is relevant.

Evaluation criticising Natural law:

This weakness is successful because it shows natural law is trying to add flexibility to inflexible biblical law – e.g. thou shalt not kill. Self-defence, passive euthanasia, even perhaps abortion could be justified by the double effect. The natural and divine law do not cover separate areas but cross-over and therefore conflict on this point of inflexibility. Christians must choose the Bible over Natural law.

Proportionalism & the double effect

A strength of Natural law is its flexibility due to the doctrine of the double effect.

This has been used by modern Catholics to allow, for example, passive euthanasia, abortion to save the life of the mother (though this is complex and controversial in catholicism), and contraception to prevent the spread of AIDS.  

Weakness: B. Hoose’s proportionalism

Hoose developed natural law into what he claimed was a more flexible and coherent form called proportionalism.

Proportionalists agree about following the primary precepts, but argue it is acceptable to go against them if you have a proportionate reason for doing so – i.e., if your action will bring about more good than bad.

The nature of the act condition is invalid because what matters is the proportion of value to disvalue produced by your action. The means-end condition is invalid because what matters is the ultimate value/disvalue proportion.

For proportionalists, the only valid condition in the double effect is proportionality and your intention must be to act with with a proportionate reason.

E.g., Hoose would agree with Fletcher’s example of killing a baby to save the lives of its family. It brings about more value than disvalue, so we have a proportionate reason for breaking the primary precepts in that case.

A resulting strength of proportionalism is it’s far greater flexibility.

Euthanasia, abortion, genetic engineering, anything natural law said to be wrong could in principle be right depending on whether there is a proportionate reason for doing them in a particular situation. There are no intrinsically evil actions. An action can be intrinsically in violation of the principles of natural law, but for proportionalism that doesn’t establish wrongness.

Hoose’s argument for the greater coherence of proportionalism.

Aquinas said it’s bad to go against the primary precepts, but it could overall be justified through the double effect in some cases.

Hoose objects that an overall good act cannot be composed of bad parts (e.g breaking the precepts). Moral evil is moral evil, it could never be a component of moral goodness.

Moral actions are composed of parts like intention and their dis/accordance with the precepts, but those parts cannot be called good or bad in themselves. Only the overall act can be good or bad. So, no part of an action can be morally bad, including what the action itself is and whether it breaks the precepts.

The ‘parts’ of an action are still good/evil, not in a moral sense but in a factual or physical sense, regarding their enabling or disabling of flourishing (eudaimonia).

Factual enabling of flourishing ‘Ontic goods’. These are physical or factual goods, such as health, life and knowledge (these all enable flourishing and are thus ontic goods). ‘Ontic evils’ are the deprivation of such goods. Whatever in an action enables flourishing is an ‘ontic good’, whatever disables it is an ‘ontic evil’.

To decide whether the action is overall morally good however, we need to judge whether the action produced more ontic good compared to ontic evil. If it does, we have a proportionate reason for doing it, even if it goes against the primary precepts.

Aquinas would say killing the baby in Fletcher’s example is just morally evil – but Hoose is saying no, it’s only an ontic evil – which must be measured against the ontic good caused by the action (saving the whole family). If there’s a proportionate reason for doing it, then it is a morally good act to kill the baby.

“An act is either morally right or morally wrong. It cannot be both. If we talk of morally evil (meaning morally wrong) elements in an act that is morally right and is performed by a morally good person, we confuse the whole issue.” – B. Hoose.

Evaluation defending Natural law

John Paul II defends Natural law ethics, arguing that proportionalism is not a valid development because it misunderstands the objective/intention required for ethical action.

“Acting is morally good when the choices of freedom are in conformity with man’s true good and thus express the voluntary ordering of the person towards his ultimate end” – John Paul II

Under natural law, we intentionally act on the moral law discovered in our nature by reason (primary precepts). God designed us to intuitively know these moral laws – so our telos/purpose is to follow them. The goal of natural law is to follow the primary precepts. John Paul II is correct that Proportionalism misdirects our goal/intention towards the balance of ontic goods over evils produced by our action. God has designed us to follow the primary precepts – so that is our ethical purpose. Hoose misdirects us away from that.

“The morality of the human act depends primarily and fundamentally on the “object” rationally chosen by the deliberate will,  as is borne out by the insightful analysis, still valid today, made by Saint Thomas.” – John Paul II.

Evaluation criticising Natural law

Defenders of traditional Natural law like John Paul II assume that our ultimate end is simply to follow the precepts of natural law in a ridged deontological way.

Calculating the ontic goods over evils of our actions could actually be part of our ultimate end.

Even Aquinas accepted that his list of primary precepts was not final but could be added to. The project of understanding the telos of our nature is ongoing. Developments like those of proportionalism cannot be dismissed simply because they differ with the traditional approach.

Whether proportionalism is better suited to our fallen world

A strength of the double effect is that it is pragmatic.

It fits with the reality of moral decision making. Sometimes actions can have two effects and a method is required that makes sense of how to judge them. Aquinas’ self-defence illustration is intuitive.

Proportionalism has the strength of being better suited to moral decision making in our imperfect world.

The Fall destabilised creation, including the moral order. God designed the natural law to perfectly fit following it with human flourishing. In a post-lapsarian world, the presence of ontic evil around acts that follow the natural law sometimes mean they prevent flourishing. Taking a deontological approach to natural law doesn’t make sense.

Ontic goods and evils are defined in relation to whatever enables or disables flourishing. Flourishing is part of our telos. So arguably following proportionalism would successfully orientate us towards our telos.

Weakness: John Paul II argues that although consequences matter, proportionalism takes that too far when it claims that there are no intrinsically evil actions.

It can never enable achievement of our telos to do such acts. Consequences certainly matter, but they can never make an intrinsically evil act acceptable. Such acts disorder us; they can never rightly order us towards our end, even if done with the intention of bringing about a greater balance of ontic goods over ontic evils. It is better to avoid them and bear the consequences, even if it means suffering and dying. JP2 reminds us that early Christians were prepared to be martyred for their faith.

Only intentionally following of the natural law within our nature aims us at our telos of glorifying God. Consequences matter to some degree, but not to the point of justifying intrinsically evil acts.

“Christian ethics, which pays particular attention to the moral object, does not refuse to consider the inner ‘teleology’ of acting, inasmuch as it is directed to promoting the true good of the person; but it recognizes that it is really pursued only when the essential elements of human nature are respected. The human act, good according to its object, is also capable of being ordered to its ultimate end … If acts are intrinsically evil, a good intention or particular circumstances can diminish their evil, but they cannot remove it … an intention is good when it has as its aim the true good of the person in view of his ultimate end. But acts whose object is ‘not capable of being ordered’ to God and ‘unworthy of the human person’ are always and in every case in conflict with that good.” – John Paul II.

Evaluation defending proportionalism

John Paul II’s reference to the Christian Martyrs is a self-serving illustration. It’s easy for most people to make sense of sacrificing oneself rather than break the natural law. However, what about cases where if we don’t break the natural law, we will be letting others suffer and die? Euthanasia is a clear example.

Evaluation criticising proportionalism

This is the ultimate argument against all forms of religious consequentialism. They misunderstand the purpose of morality. We are not here on earth to achieve happiness, but to follow God’s moral law. If suffering results from following God’s law due to living in a fallen world, that doesn’t invalidate God’s law. Aristotle and Aquinas both explained that flourishing is not happiness, but cultivating the virtues which rationally order us in our actions towards our end. As JP2’s example of the martyrs shows, if it is virtuous to suffer and die then that is what we should do, technically that is flourishing. Cardinal Newman expressed this sentiment in a poetic if stark manner:

“The Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions on it to die of starvation in extremest agony … than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one willful untruth, or should steal one poor farthing without excuse.” – John Henry Newman.

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The Natural Law Tradition in Ethics

‘Natural law theory’ is a label that has been applied to theories of ethics, theories of politics, theories of civil law, and theories of religious morality. We will be concerned only with natural law theories of ethics: while such views arguably have some interesting implications for law, politics, and religious morality, these implications will not be our focus here.

This article has two central objectives. First, it aims to identify the defining features of natural law moral theory. Second, it aims to identify some of the main theoretical options that natural law theorists face in formulating a precise view within the constraints set by these defining features and some of the difficulties for each of these options. It will not, however, attempt to recount the history of the development of natural law thought. (For a very helpful detailed history of natural law thought up to the beginning of the modern period, see Crowe 1977. For a very helpful detailed history of natural law thought in the modern period, see Haakonssen 1996. For an article-length recap of the entire history of natural law thought, see Haakonssen 1992.)

1.1 Natural law and divine providence

1.2 natural law and practical rationality, 1.3 the substance of the natural law view, 1.4 paradigmatic and nonparadigmatic natural law theories, 2.1 natural goodness, 2.2 knowledge of the basic goods, 2.3 the catalog of basic goods, 2.4 from the good to the right, other internet resources, related entries, 1. key features of natural law theories.

Even though we have already confined ‘natural law theory’ to its use as a term that marks off a certain class of ethical theories, we still have a confusing variety of meanings to contend with. Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism — that is, any moral theory that holds that some positive moral claims are literally true (for this conception of moral realism, see Sayre-McCord 1988)— counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view. It might be thought that there is nothing that can be done to begin a discussion of natural law theory in ethics other than to stipulate a meaning for ‘natural law theory’ and to proceed from there. But there is a better way of proceeding, one that takes as its starting point the central role that the moral theorizing of Thomas Aquinas plays in the natural law tradition. If any moral theory is a theory of natural law, it is Aquinas’s. (Every introductory ethics anthology that includes material on natural law theory includes material by or about Aquinas; every encyclopedia article on natural law thought refers to Aquinas.)  It would seem sensible, then, to take Aquinas’s natural law theory as the central case of a natural law position: of theories that exhibit all of the key features of Aquinas’s natural law view we can say that they are clearly natural law theories; of theories that exhibit few of them we can say that they are clearly not natural law theories; and of theories that exhibit many but not all of them we can say that they are in the neighborhood of the natural law view but nonetheless must be viewed as at most deviant cases of that position. There remain, no doubt, questions about how we determine what are to count as the key features of Aquinas’s position. But we may take as the key features those theses about natural law that structure his overall moral view and which provide the basis for other theses about the natural law that he affirms.

For Aquinas, there are two key features of the natural law, features the acknowledgment of which structures his discussion of the natural law at Question 94 of the Prima Secundae of the Summa Theologiae . The first is that, when we focus on God’s role as the giver of the natural law, the natural law is just one aspect of divine providence; and so the theory of natural law is from that perspective just one part among others of the theory of divine providence. The second is that, when we focus on the human’s role as recipient of the natural law, the natural law constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.

While our main focus will be on the status of the natural law as constituting the principles of practical rationality, we should consider for a moment at least the importance within Aquinas’s view of the claim that the natural law is an aspect of divine providence. The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law (ST IaIIae 91, 2). The eternal law, for Aquinas, is that rational plan by which all creation is ordered (ST IaIIae 91, 1); the natural law is the way that the human being “participates” in the eternal law  (ST IaIIae 91, 2). While nonrational beings have a share in the eternal law only by being determined by it — their action nonfreely results from their determinate natures, natures the existence of which results from God’s will in accordance with God’s eternal plan — rational beings like us are able to grasp our share in the eternal law and freely act on it  (ST IaIIae 91, 2). It is this feature of the natural law that justifies, on Aquinas’s view, our calling the natural law ‘law.’  For law, as Aquinas defines it (ST IaIIae 90, 4), is a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God’s choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law.

When we focus on the recipient of the natural law, that is, us human beings, the thesis of Aquinas’s natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature (ST IaIIae 94, 2). The notion that the natural law  constitutes the basic principles of practical rationality implies, for Aquinas, both that the precepts of the natural law are universally binding by nature (ST IaIIae 94, 4) and that the precepts of the natural law are universally knowable by nature (ST IaIIae 94, 4; 94, 6).

The precepts of the natural law are binding by nature: no beings could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods (ST IaIIae 94, 2). The good and goods provide reasons for us rational beings to act, to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have (ST Ia 5, 1), the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is.

The precepts of the natural law are also knowable by nature.  All human beings possess a basic knowledge of the principles of the natural law (ST IaIIae 94, 4). This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions (ST IaIIae 94, 6).

If Aquinas’s view is paradigmatic of the natural law position, and these two theses — that from the God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason — are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view: for agnosticism is the refusal to commit either to God’s existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God’s existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with relativist and conventionalist views, on which the status of value is entirely relative to one’s community or determined entirely by convention. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.

The center of Aquinas’s natural law view as described thus far concerns what we might call the metaphysics of morals: its role in divine providence and the universally authoritative character of its norms. What, though, of the normative content of Aquinas’s natural law position?  Is there anything distinctive about the normative natural law position?  Here it is difficult to say much that is uncontroversial, but we can say a sufficient amount about Aquinas’s natural law theory to make clear that it is an interesting alternative to utilitarian (and more generally consequentialist) ethics, Kantian views, and standard Aristotelian positions. (For a magisterial treatment of Aquinas’s natural law ethic, see Rhonheimer 2000.)

Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided (ST IaIIae 94, 2). This is, one might say, a principle of intelligibility of action (cf. Grisez 1965): only action that can be understood as conforming with this principle, as carried out under the idea that good is to be sought and bad avoided, can be understood as an intelligible action. But no one can in acting simply pursue good — one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued — life, procreation, knowledge, society, and reasonable conduct (ST IaIIae 94, 2; 94, 3) are all mentioned by Aquinas (though it is not clear whether the mentioned items are supposed to constitute an exhaustive list).

So on Aquinas’s view it is the good that is fundamental: whether an action, or type of action, is right is logically posterior to whether that action brings about or realizes or is some good . The good is, on Aquinas’s view, prior to the right. But on Aquinas’s view we are, somehow, able to reason from these principles about goods to guidelines about how these goods are to be pursued. Aquinas’s thoughts are along the following lines: first, there are certain ways of acting in response to the basic human goods that are intrinsically flawed; and second, for an act to be right, or reasonable, is for it to be an act that is in no way intrinsically flawed (ST IaIIae 18, 1).

The important task, then, is to identify the ways in which an act can be intrinsically flawed. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed (though for an attempt to identify such a master principle in Aquinas’s work see Finnis 1998, p. 126), though he does indicate where to look — we are to look at the features that individuate acts, such as their objects (ST IaIIae 18, 2), their ends (ST IaIIae 18, 3), their circumstances (ST IaIIae 18, 4), and so forth. An act might be flawed through a mismatch of object and end — that is, between the immediate aim of the action and its more distant point. If one were, for example, to regulate one’s pursuit of a greater good in light of a lesser good — if, for example, one were to seek friendship with God for the sake of mere bodily survival rather than vice versa — that would count as an unreasonable act. An act might be flawed through the circumstances: while one is bound to profess one’s belief in God, there are certain circumstances in which it is inappropriate to do so (ST IIaIIae 3, 2). An act might be flawed merely through its intention: to direct oneself against a good — as in murder (ST IIaIIae 64, 6), and lying (ST IIaIIae 110, 3), and blasphemy (ST IIaIIae 13, 2) — is always to act in an unfitting way. Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. He allows for the Aristotelian insight that the particulars of the situation always outstrip one’s rules, so that one will always need the moral and intellectual virtues in order to act well (Commentary on NE, II, 2, 259). But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas’s view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law. (These are only examples, not an exhaustive list of absolutely forbidden actions.)

Part of the interest of Aquinas’s substantive natural law ethic lies in its not falling into the neat contemporary categories for moral theories. His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians.  But Aquinas would deny that the principles of the right enjoin us to maximize the good — while he allows that considerations of the greater good have a role in practical reasoning, action can be irremediably flawed merely through (e.g.) badness of intention, flawed such that no good consequences that flow from the action would be sufficient to justify it — and in this Aquinas sides with the Kantians against the utilitarians and consequentialists of other stripes. And while Aquinas is in some ways Aristotelian, and recognizes that virtue will always be required in order to hit the mark in a situation of choice, he rejects the view commonly ascribed to Aristotle (for doubts that it is Aristotle’s view; see Irwin 2000) that there are no universally true general principles of right. The natural law view rejects wholesale particularism.

To summarize: the paradigmatic natural law view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.

Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist. He held that the laws of nature are divine law ( Leviathan , xv, ¶41), that all humans are bound by them ( Leviathan , xv, ¶¶36), and that it is easy to know at least the basics of the natural law ( Leviathan , xv, ¶35). He held that the fundamental good is self-preservation ( Leviathan , xiii, ¶14), and that the laws of nature direct the way to this good (Leviathan, xiv, ¶3). He offered a catalog of laws of nature that constitute the “true moral philosophy” ( Leviathan , xv, ¶40). There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail. (See, for example, Grisez 1983, Finnis 1980,  MacIntyre 1999, and Murphy 2001.)

It is also easy to identify a number of writers, both historical and contemporary, whose views are easily called natural law views, through sharing all but one or two of the features of Aquinas’s paradigmatic position. Recently there have been nontheistic writers in the natural law tradition, who deny (1): see, for example, the work of Michael Moore (1982, 1996) and Philippa Foot (2001). There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied (2), the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: the views of John Duns Scotus, Francisco Suarez, and John Locke fit this mold.    Arguably the Stoics were natural law thinkers, but they seem to deny (4), holding the right to be prior to the good (see Striker 1986). Some contemporary theological ethicists called ‘proportionalists’ (e.g. Hallett 1995) have taken up the natural law view with a consequentialist twist, denying (6). (For a discussion of the relationship between proportionalism and natural law theory see Kaczor 2002.) And while some see Aristotle as being the source of the natural law tradition, some have argued that his central appeal to the insight of the person of practical wisdom as setting the final standard for right action precludes the possibility of the sort of general rules that would (at least in a theistic context) make Aristotle’s ethics a natural law position. There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all.

2. Theoretical Options for Natural Law Theorists

Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view. Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues.

It is essential to the natural law position that there be some things that are universally and naturally good. But how is universal, natural goodness possible?  Given the variability of human tastes and desires, how could there be such universal goods?

Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good. On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one’s pro-attitudes, or would be the object of one’s pro-attitudes in some suitable conditions. One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. But this is not so. For one might hold that human beings’ common nature, their similarity in physiological constitution, makes them such as to have some desires in common, and these desires may be so central to human aims and purposes that we can build important and correct precepts of rationality around them. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human (when he or she is properly biologically functioning) his or her central aim is the avoidance of violent death. Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement.

The second answer is Aristotelian. The idea here is to reject a subjectivism about the good, holding that what makes it true that something is good is not that it stands in some relation to desire but rather that it is somehow perfective or completing of a being, where what is perfective or completing of a being depends on that being’s nature. So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature. So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: as the good is not defined fundamentally by reference to desire, the fact of variation in desire is not enough to raise questions about universal goods. This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition.

The third answer is Platonic. Like the Aristotelian view, it rejects a subjectivism about the good. But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are. So one might think that some things — knowledge, beauty, etc. — are just good in themselves, apart from any reference to human desire or perfection, but hold that the pursuit of these are only part of the natural law insofar as they fall within the ambit of human practical possibility. This view of the good is not much defended — in part because of the scathing criticism offered of Plato’s view by Aristotle in the Nicomachean Ethics (NE I, 6) — but it was affirmed by Iris Murdoch (1970), and forms part of the natural law view defended by Michael Moore (1982).

None of these answers is without difficulties. While there are contemporary defenders of Hobbesian moral theories (see Gauthier 1986), there is no one who is on record defending Hobbes’s interesting combination of a thoroughgoing subjectivism about the good along with an account of a dominant substantive good around which the moral rules are formulated. The basic reason for this just seems to be that Hobbes’s arguments that the human desire for self-preservation is such an entirely dominant desire are implausible, and there do not seem to be any better arguments available. The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other. While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question. (For defenses of such Aristotelian accounts of the good, see Foot 2001, Thompson 1995, and Thompson 2004.)

Another central question that the natural law tradition has wrestled with concerns our knowledge of the basic goods. How can we come to know these fundamental goods?

Return to Aquinas’s paradigmatic natural law position. His account of our knowledge of the fundamental goods has been understood in different ways (Murphy 2001, ch. 1). Some have understood Aquinas as affirming a theory of our knowledge of the fundamental precepts of the natural law that we can label ‘derivationism.’  The idea here is that we can derive from a metaphysical study of human nature and its potentialities and actualizations the conclusion that certain things are good for human beings, and thus that the primary precepts of the natural law bid us to pursue these things (cf. Lisska 1996). One can imagine a Hobbesian version of this view as well. One might say that by a careful study of the human being’s desire-forming mechanisms, one can see that there are certain things that would be necessarily desired by biologically sound human beings, and thus that the human good includes these items. (Hobbes in fact produces such arguments at [EL], I, 7.)  While a natural law theorist might downplay the importance of derivationist knowledge of the natural law, it is hard to see how a consistent natural law theorist could entirely reject the possibility of such knowledge, given the view that we can provide a substantial account of how the human good is grounded in nature: for to show that the human good is grounded in nature is to show that human nature explains why certain things are goods, and it is hard to see how one could affirm that claim while entirely rejecting the possibility of derivationist knowledge of the human good (see Murphy 2001, pp. 16–17). Some have thought, echoing criticisms of natural law theory by those entirely hostile to it, that derivationist theories of practical knowledge fall prey to ‘Hume’s Law,’ that it is impossible to derive an ‘ought’ from an ‘is,’ that is, any normative truth from any set of nonnormative truths. The most that this can show, though, is that the natural law theorist needs an account of those bridge truths that enable us to move between claims about human nature and claims about human goods.

It must be conceded, however, that a consistent natural law theorist could hardly hold that derivationist knowledge of the human good is the only such knowledge possible. For it is part of the paradigm natural law view that the basic principles of the natural law are known by all, and the sort of arguments that would need to be made in order to produce derivationist knowledge of the human good are certainly not had (or even have-able) by all. (Recently Jensen (2015) has offered a thorough defense of a derivationist account that aims to take such worries into account.) Another way that Aquinas’s account of knowledge of the fundamental goods has been understood — and it is an understanding better able to come to grips with the widespread knowledge of fundamental goods — can be labeled ‘inclinationism.’  On this view, one’s explicit grasp of the fundamental goods follows upon but is not derived from one’s persistent directedness toward the pursuit of certain ends, which directedness involves an implicit grasp of these items as good. So human beings exhibit a tendency to pursue life, and knowledge, and friendship, and so forth; and reflection on this tendency occasions an immediate grasp of the truth that life, and knowledge, and friendship, and so forth are goods. The affirmation of the claims ‘life is good,’ ‘knowledge is good,’ ‘friendship is good,’ etc. makes intelligible the persistent pursuit of these ends by rational beings like us.

While inclinationism and derivationism are distinct methods, they are by no means exclusive: one can hold that knowledge of fundamental goods is possible in both ways. Indeed, it may well be that one way of knowing can supplement and correct the other. There may be some goods that are easier to recognize when taking the speculative point of view, the point of view of the observer of human nature and its potentialities, and some that are easier to recognize when taking the practical point of view, the point of view of the actively engaged in human life. Indeed, by connecting nature and the human good so tightly, the natural law view requires that an account of the good reconcile these points of view.

There are, of course, reasons to be worried about both of these ways of knowing basic goods — worries that go beyond general skeptical doubts about how we could know any normative truths at all.  Derivationists have to explain how we come to know what counts as an actualization of a human potency, and have to explain how we connect these via bridge principles with human goods. Inclinationists have their own troubles. In particular, they need to deal with the fact that, even if they are not in the business of deriving goods from inclinations or identifying the goods precisely with what we tend to pursue, they take as their starting point human directedness.   And it has been rightly noted that human directedness is not always a lovely thing. Power and prestige seem to be a matter of human directedness — at least as much so as, say,  aesthetic enjoyment and speculative knowledge — but they do not make it to the natural law theorist’s catalog of goods (though they do appear to be part of the good in Aristotle’s picture; cf. the discussion in Hare 2001, p. 14). While these difficulties persist for inclinationist and derivationist accounts of knowledge of the basic goods, they may well be eased if one affirms both accounts: one might be able to use inclinationist knowledge to provide some basis for bridge principles between knowledge of human nature and knowledge of human goods, and one might be able to use derivationist knowledge to modify, in a non-ad-hoc way, the objectionable elements of the account that one might be bound to give if proceeding on an inclinationist basis alone. (Reconciling the inclinationist and derivationist approaches is a theme in Murphy 2001 and Wall 2010.)

The dialectic between inclinationist and derivationist accounts of knowledge of the first principles of the natural law is central to natural law epistemology, but there are other accounts of knowledge of the natural law that focus on its social dimension. Alasdair MacIntyre has argued, for example, that the first precepts of the natural law are to be understood as those that make possible communal inquiry into the nature of the good: both the positive and the negative precepts are enabling rules, norms that enable humans to engage in common pursuit of knowledge of what is valuable. The norms of the natural law preclude our acting toward other potential partners in inquiry in way that would undermine the possibility of common pursuit of the good (MacIntyre 1994, 183–184). To come to know the primary precepts of the natural law, then, is a matter of coming to know what sorts of social relationships make possible common pursuit of common goods.

A distinct sort of social emphasis on knowledge of the natural law asks why we should think of knowledge of the natural law as arising exclusively or even predominantly either from one’s own immediate rational insight into what is implicit grasped or from some sort of derivation from the fact that one’s own inclinations of the will have certain determinate objects. One might hold that we have excellent reason to believe that knowledge of the natural law unfolds historically. Jean Porter, for example, argues that by close attention to the various sorts of social structure exhibited cross-culturally, we can extract the necessary “starting points” (Porter 2005, p. 132) to begin assessing various proposed norms of action. And Jonathan Crowe emphasizes knowledge of the natural law as the outcome of the attempt to interpret human practices, and will be an historically-extended process that will be necessarily an unfinished task (Crowe 2019, pp. 6-7; there is also discussion of interpretation of social practices as a means to knowing the natural law in Murphy 2007).

A developed natural law theory includes within it a catalog of the fundamental goods, the basic values upon which the principles of right are founded. Suppose that we follow at least the inclinationist line, taking it to be faithful to the natural law idea that knowledge of the basic goods is widely distributed. Our task then is to provide an explicit account of those goods implicit knowledge of which is manifested in human inclination toward certain ends. What are the goods affirmation of which makes intelligible these inclinations?

It is clear from this way of putting the question that even if natural law theorists are right that this implicit knowledge is widely distributed, it would be easy for natural law theorists to disagree in their catalogs of basic goods. For the task here is that of formulating propositionally, and in as illuminating a way as possible, what items need be affirmed as intrinsically good in order to make sense out of our inclinations. And there are, unsurprisingly, disagreements in catalogs of basic goods. The goods that Aquinas mentions in his account include life, procreation, social life, knowledge, and rational conduct. Grisez 1983 includes self-integration, practical reasonableness, authenticity, justice and friendship, religion, life and health, knowledge of truth, appreciation of beauty, and playful activities (pp. 121–122). Finnis 1980 includes life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion (pp. 86–90). Chappell 1995 includes friendship, aesthetic value, pleasure and the avoidance of pain, physical and mental health and harmony, reason, rationality, and reasonableness, truth and the knowledge of it, the natural world, people, fairness, and achievements (p. 43). Finnis 1996 affirms a list much like Grisez 1983, but includes in it “the marital good” (p. 5). Murphy 2001 includes life, knowledge, aesthetic experience, excellence in work and play, excellence in agency, inner peace, friendship and community, religion, and happiness (p. 96). Gomez-Lobo 2002 includes life, the family, friendship, work and play, experience of beauty, theoretical knowledge, and integrity (pp. 10–23). Crowe (2019) includes life, health, pleasure, friendship, play, appreciation, understanding, meaning, and reasonableness (p. 35).

Aside from the inevitable differences in lists of goods produced by natural law theorists, there are also more focused debates about the inclusion of particular alleged goods within the natural law theorists’ lists. Note, for example, that of the lists above, only Chappell’s includes pleasure and the absence of pain. Whatever else we say here, it seems that common sense is initially on Chappell’s side: what seems more obvious than that pleasure and the avoidance of pain are basic reasons for action?  The reasons for rejecting pleasure and the absence of pain from the list of goods are various: some writers argue, following Aristotle, that pleasure is not a good in abstraction from the activity in which pleasure is taken; some that the absence of pain is not a completion or a fulfillment of human nature, and thus cannot be among the basic goods; some that the avoidance of pain is simply an instance of some other basic good, such as inner peace. What this debate illustrates is the extent to which the formulation of a catalog of goods is not a straightforward matter. Everyone agrees that one who avoids touching a hot stove in part to avoid the awful pain has some reason to avoid touching the stove. The difficulty is to bring together our various sources of knowledge about the good to formulate an account that explains well precisely why it is that such an act is reasonable. These sorts of debates reappear with respect to goods like life (is life intrinsically or instrumentally good?  is merely being alive intrinsically good, or is life only intrinsically good when one is enjoying a certain level of vitality?), religion (is harmony with God really a human good?  is it merely a kind of friendship?  does its status as a good depend on whether there is a being such as God?), and what Finnis and Grisez now call the ‘marital good’ (is the good of marriage simply an amalgam of various other goods, as friendship, procreation, rational agency, or is it really a distinct, analytically separable value?). Thus Echeñique denies that life can be a basic good in the way that natural law theorists typically take it to be (Echeñique 2016); Cuneo has rejected religion as a basic good (Cuneo 2005, pp. 116–118); and Macedo has argued against the marital good (Macedo 1995).

Suppose that we were to have in hand satisfactory accounts of natural goodness and our knowledge of it, along with a rationally defensible account of the basic goods that are the fundamental reasons for action. All that we would have so far is the natural law theorist’s account of what we might call minimally rational action — action that seeks to realize some good. What we would not have yet is a full account of right action. For we are frequently in situations in which there are various different courses of action that we might pursue, each of which promises to realize some good; are there no guidelines to which we might appeal in order to show some of these choices superior to others?  After all, some of even the most obviously morally wrong actions can be seen to promise some good — a robber might kill in order to get the money he needs to pursue genuine goods — and the natural law theorist wants to be able to say why these obviously morally wrong actions are morally wrong. As we have seen, the paradigmatic natural law view holds that there are some general rules of right that govern our pursuit of the various goods, and that these rules of right exclude those actions that are in some way defective responses to the various basic goods. How, though, are we to determine what counts as a defective response to the goods?

There are at least three possibilities. One might appeal to a master rule of right that can be used to generate further rules; call this the master rule approach. One might appeal to a methodological principle by which particular rules can be generated; call this the method approach. Or one might appeal to some standard for distinguishing correct and incorrect moral rules that is not understandable as a method; call this (for reasons we shall see shortly) the virtue approach.

On the master rule approach, the task of the natural law theorist is to identify some master rule which bears on the basic goods and, perhaps in conjunction with further factual premises, is able to produce a stock of general rules about what sorts of responses to the basic goods are or are not reasonable. While it is far from clear whether there was a single way that Aquinas proceeded in establishing moral norms from the primary precepts of the natural law in the Summa Theologiae , John Finnis has argued (Finnis 1998, p. 126) that Aquinas employed this master rule approach: on his view, Aquinas held that this master rule is the rule of universal love, that one should love one’s neighbor as oneself. This rule bids us to respond to the good lovingly wherever it can be realized, and from it we can see that certain ways of responding to the good are ruled out as essentially unloving. Grisez clearly employs this approach: he writes that the first principle of morality is that “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment” (Grisez 1983, p. 184). This first principle, Grisez says, contains implicitly within it various “modes of responsibility” from which particular moral rules can be derived.

The central difficulty with this employment of the master rule approach is that of explaining how we are to grasp this first principle of morality as correct. What is the relationship between our knowledge of the basic goods and our knowledge of the master rule?  When Grisez defends his master rule, he writes that its status is due to a certain function that a first principle of morality must perform:  “It must provide the basis for guiding choices toward overall human fulfillment. As a single principle, it will give unity and direction to a morally good life. At the same time, it must not exclude ways of living which might contribute to a complete human community” (Grisez 1983, p. 184). But this presupposes an awful lot: why should we assume in advance that a proper response to the basic goods must be one that is oriented toward a “complete human community”?

On the method approach, by contrast, there is no need for a master principle that will serve as the basis for deriving some particular moral rules. The idea here is the natural law theorist needs not a master rule but a test for distinguishing correct moral rules from incorrect ones. We know from our earlier consideration of the paradigmatic natural law view that the test for distinguishing correct moral rules from incorrect ones must be something like the following: if a moral rule rules out certain choices as defective that are in fact defective, and rules out no choices as defective that are not in fact defective, then it is a correct moral rule. What would distinguish different employments of the method approach is their accounts of what features of a choice we appeal to in order to determine whether it is defective. The knowledge that we have to go on here is our knowledge of the basic goods. If a certain choice presupposes something false about the basic goods, then it responds defectively to them. So a moral rule can be justified by showing that it rules out only choices that presuppose something false about the basic goods.

This is very abstract. Here is an example of an employment of this approach. While Finnis now affirms Grisez’s master rule approach, in his 1980 work he defends various principles of practical reasonableness without adverting to a master rule. He argues, for example, that it is always wrong to intend the destruction of an instance of a basic good (Finnis 1980, pp. 118–123). (So, no lying, for lying is an intentional attack on knowledge; no murder, for murder is an intentional attack on life, and so forth.)  Why is it always wrong to do so?  It would be unreasonable simply to try to destroy an instance of a basic good, for no further purpose: for that would treat an instance of a basic good as something that it is not — that is, as valueless. And it would be wrong to destroy an instance of a basic good for the sake of bringing about some other instance of a basic good: for that would make sense only if the good brought about were more valuable than the good destroyed, but on Finnis’s view all distinct instances of basic goods are incommensurable — none is of more, less, or equal value with any other. So the rule forbidding intentional destruction of an instance of a basic good is justified because it rules out only choices that presuppose something false about the nature of the basic goods. (For a working out of the method approach, see Murphy 2001, ch. 5.)

The method approach presupposes less of substance about morality than the master rule approach presupposes. But it requires us to draw upon an interesting and rich knowledge of the features of the basic goods. Whether this information is available is a matter for debate. But the method approach has the advantage of firmly rooting natural law arguments for moral principles in the goods the pursuit of which those moral principles are supposed to regulate.

Neither the master rule nor the method approach implies that the natural law theorist must hold that all right action can be captured in general rules. The natural law view is only that there are some such rules. It is consistent with the natural law position that there are a number of choice situations in which there is a right answer, yet in which that right answer is not dictated by any natural law rule or set of rules, but rather is grasped only by a virtuous, practically wise person. It is, however, open to the natural law theorist to use this appeal to the judgment of the practically wise person more widely, holding that the general rules concerning the appropriate response to the goods cannot be properly determined by any master rule or philosophical method, but can be determined only by appeal to the insight of the person of practical wisdom. If it really is wrong in all cases to tell lies, as Aquinas and Grisez and Finnis have argued, our grasp of this moral truth is dependent on our possessing, or our being able to recognize the possessor of, practical wisdom. If such a person never tells lies, because she or he just sees that to tell lies would be to respond defectively to the good, then that lying is always wrong is a rule of the natural law.

It may be true that by the virtue approach we can learn of some general rules of the natural law. What is more interesting is whether a defender of the virtue approach would be right to dismiss the claims of the master rule or method approaches. (For, after all, one might be able to learn that lying is wrong either through moral argument or through the perceptive insight of practical wisdom.)  And it does not seem that the defender of the master rule or method approach should be particularly concerned to discredit the virtue approach. For if defenders of the master rule or method approach recognize the existence of a capacity of judgment like practical wisdom, then it would be strange to allow that it can be correctly exercised on a number of particular occasions while denying that we might learn of general rules from observing patterns of its exercise on various occasions.

One challenge to these various natural law attempts to explain the right in terms of the good denies that the natural law theorist can provide adequate explanations of the range of norms of right conduct for which moral theories ought to be able to provide explanations. That is, one might allow for the sake of argument the natural law theorist’s identification of some range of human goods, while denying that he or she can identify, and justify in natural law terms, adequately concrete modes of appropriate response to those goods. This challenge cannot be profitably addressed here; what would be required would be a close examination of the merits of particular natural law explanations of particular moral norms (a task taken up in, for example, Grisez 1993). One might also look to recent attempts to apply the natural law view to pressing contemporary moral problems — those of research ethics (Tollefsen 2008), economic justice (Chartier 2009), environmental ethics (Davison 2009), business ethics (Gonzalez 2015), the ethics of suicide and euthanasia (Paterson 2015), and population ethics (Delaney 2016), for example — as tests of the fruitfulness of that position.

A more radical critique of the paradigmatic natural law account of the connection between the good and the right calls into question the very idea that one can get principles of moral rightness merely from what constitutes a defective response to the good. According to this critique, while it is true that one might be able to come up with some notion of unreasonableness by appeal to the notion of what is defective response to the human goods, the notion of moral rightness belongs to a family of concepts distinct from that to which the notion of reasonableness belongs. On this view, moral rightness belongs to the obligation family, and the concept of obligation is irreducibly social : one is under an obligation only if one is subject to some sort of demand in the context of a social relationship (see, for an example of this view from a theological voluntarist perspective, Adams 1999, pp. 238–241; see, for an example of this view with a Kantian twist, Darwall 2006). It is part of the logic of obligation that when one is under an obligation, that condition has resulted from a demand imposed on him or her by some other party. So, according to this line of criticism, the paradigmatic natural law view is unable to show that the natural law is intrinsically morally authoritative: the precepts of the natural law can be rules that all of us human beings are obligated to obey, that it would be wrong for us to disobey, and that we would be guilty for flouting only if these precepts are imposed upon us by an authoritative being — perhaps a being like God.

The intrinsic moral authority of the natural law has been a matter of debate since Aquinas: it was a central issue dividing Aquinas’s view from those of Scotus, Ockham, and Suarez. It continues to be an issue between natural law theorists like Grisez (1983) and Finnis (1980) on one hand and theological voluntarists like Adams (1999) and Hare (2001) on the other. Natural law theorists have several options: they can argue against any meaningful distinction between morality and the reasonable more generally (Foot 2000, pp. 66–80); or they can embrace the distinction, but hold that on the clearest conception of the moral that we possess, the natural law account of reasonableness in action adequately satisfies that conception (Murphy 2001, pp. 222–227); or they can hold that the notion of ‘morally right’ is so muddled that it should be jettisoned, leaving in its stead the notion of the reasonable (cf. Anscombe 1958). It is at present far from clear which of these avenues of response the natural law theorist has most reason to embrace.

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Introduction to Natural Law and to the Work of Montesquieu

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• Mark H. Waddicor 2  

Part of the book series: Archives Internationales D’Histoire des Idées / International Archives of the History of Ideas ((ARCH,volume 37))

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The doctrine of natural Jaw is one of the most important elements in Western thought. It flourished in Greek and Roman times, and again in our seventeenth and eighteenth centuries, when it became more or less divorced from Christian theology. In the nineteenth century it declined as a result of the triple influence of Marxism, positivism and nihilism, but it is still a considerable force in our own time, especially in the doctrines of secular and religious humanism, and in international law.

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F. Pollock, Essays in the Law , Macmillan, 1920, p. 31. The best short and yet general work on natural law, written from a sympathetic and yet not uncritical point of view, is: A. P. D’Entrèves, Natural Law, An Introduction to Legal Philosophy [1951], Hutchinson, 1957.

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It is not the purpose of this chapter to give a comprehensive survey of Greek philosophy; its purpose is simply to define those of its trends which concern natural law. Much of our information on the early history of natural law is taken from E. Bréhier’s useful Histoire de la philosophie [1926–32], Presses Universitaires de France, 3 vols.: vol. I, 1926–8, vol. II, 1929-30.

Cf . Bréhier, op. cit ., vol. I, pp. 44-7.

Bréhier, op. cit ., vol. I, p. 47.

Ibid ., pp. 60-65.

Ibid ., p. 84. Plato appears to have believed that the Sophists equated might with right, but he may have distorted their teaching, cf . F. Goplestone, A History of Philosophy , Burns Oates and Washborne, vol. I, 1947, pp. 81–95.

Cf . Plato, Laws , X, 892a–899d; in the Loeb edition, vol. II, pp. 323-51.

Ethics , V, vii, 1–4; in the Loeb edition, pp. 294-7.

Cf . Bréhier, op. cit ., vol. I, pp. 284-331, and J. Moreau, L’Ame du monde de Platon aux stoïciens , Les Belles Lettres, 1939, pp. 158–86.

Cf . R. W. Leage, Roman Private Law [1906], ed. C. H. Zeigler, Macmillan, 1954, p. 22; (the latest edition of Leage, by A. M. Pritchard, Macmillan, 1961, is not so useful in this connection, since its account of the ius naturale and ius gentium is much more sparing).

Bréhier, op. cit ., vol. I, pp. 291-2.

See the following works on this complex subject: W. Buckland, A Textbook of Roman Law , Cambridge University Press, 1950, pp. 50–52; W. G. Friedmann, Legal Theory , Stevens, 1960, pp. 21-5; H. F. Jolowicz, Historical Introduction to the Study of Roman Law , Cambridge University Press, 1952, pp. 100-105; H. J. S. Maine, Ancient Law [1861], Murray, 1930, pp. 52-91; B. Nicholas, An Introduction to Roman Law , Oxford University Press, 1962, pp. 54-9; F. Schulz, History of Roman Legal Science , Oxford University Press, 1946, pp. 69-73.

See the Digest , I, i, 4, Ulpian, vol. I, p. 1 of the Mommsen edition of the Corpus iuris civilis , Berlin, Weidmann, 1899.

Compare: Digest , I, i, I, Ulpian, p. 1; ibid ., I, i, II, Paulus, p. I; Institutes , I, ii, II, also m the Mommsen edition, p. 2.

Cf J. Touchard, et al ., Histoire des idées politiques , Presses Universitaires de France, 1959, vol. I, pp. 278–80.

Summa theologica [hereafter S. t .], II, i, Q. 94, Art. 2, in the translation by Fathers of the English Dominican Province, Burns Oates and Washbourne, 1913-42, vol. VIII, p. 44. For a short but comprehensive introduction to these aspects of St. Thomas’s philosophy, see D. J. O’Connor, Aquinas and Natural Law , Macmillan, 1967, pp. 57-79.

Cf . D’Entrèves, op. cit ., p. 39, and The Oxford Dictionary of the Christian Church , ed. F. L. Gross, O.U.P., 1957, p. 1353. In the absence of any indication to the contrary, we have assumed that the Supplement to the Summa theologica , prepared by Fra Rainaldo da Piperno from an early work of St. Thomas, can also be regarded as having represented orthodox Catholic opinion.

See A. Esmein, Éléments de droit constitutionnel français et comparé [1896], Sirey, 1921, vol. I, pp. 276–8.

Cf . Hugo Grotius, De iure belli ac pacis [1625], Disc, prél ., xi, vol. I, p. 10, and I, i, 11-12, vol. I, pp. 52-4, in the translation by J. Barbeyrac, Le Droit de la guerre et de la paix , Amsterdam, P. de Coup, 1724 [hereafter Dg .]; and Samuel von Pufendorf, De iure natura et gentium [1672], II, iii, 2-15, vol. I, pp. 169-98, in the translation by Barbeyrac, Le Droit de la nature et des gens , Amsterdam, P. de Coup, 1712 [hereafter Dn .].4527 Waddicor.

For details of this work, see previous note.

For details of De iure , see p. 5, n. 19; De officio hominis , in the translation by Barbeyrac, Les Devoirs de l’homme et du citoyen , Amsterdam and Luxemburg, Chevalier, 1708 [hereafter Dv .].

De legibus natura , in the translation by Barbeyrac, Traité philosophique des lois naturelles , Amsterdam, Mortier, 1744.

Les Lois civiles dans leur ordre naturel, le droit public et legum delectus , Gavelier, 1705, 2 vols.

Origines iuris civilis, quibus ortus et progressus iuris civilis, ius naturale, gentium et xii. tabulΠlegesque ac senatusconsulta explicantur , Leipzig, Gleditsch, 1708.

Principes du droit naturel , Geneva, Barrillot, 1747.

Cf . Esmein, op. cit ., vol. I, pp. 281-2.

De cive , in Hobbes’s own translation Philosophical Rudiments Concerning Government and Society [hereafter P.R .], in The English Works of Thomas Hobbes , edited by W. Molesworth, Bohn and Longman, 1839-45, vol. II; Leviathan , in ibid ., vol. III; also Tripos, Part II: De corpore politico [1650], in ibid ., vol. IV, pp. 77-228; and The Questions Concerning Liberty, Necessity and Chance [1656], in ibid ., vol. V.

Patriarcha and other Political Works , edited by P. Laslett, Oxford, Blackwell, 1949.

Two Treatises of Government , edited by P. Laslett, Cambridge University Press, 1960 [hereafter T.T .].

One of the latest works on this subject is: R. Blake, C. Ducasse and E. Madden, Theories of Scientific Method , University of Washington Press, 1960.

The Works of the Honourable Robert Boyle , Johnston, etc., 1772.

Principia [1687], Book III, pp. 398–400, in Motte’s translation revised by F. Cajori, University of California Press, 1947; Opticks [1704], Book III, Innys, 1730, p. 380; cf . Blake, Ducasse and Madden, op. cit ., pp. 119-43. For a brilliant account of the a priori elements hidden in Newton’s philosophy, see E. A. Burtt, The Metaphysical Foundations of Modern Physical Science [1924], Routledge and Kegan Paul, 1949, pp. 223-99.

See J. Ehrard, L’Idée de nature en France dans la première moitié du XVIIIe siècle , S.E.V.P.E.N., 1963, vol. I, pp. 21 and 125-78, for a general and up-to-date discussion of this question. For more detailed information, consult P. Brunet, L’Introduction des théories de Newton en France au XVIIIe siècle: avant 1738 , Blanchard, 1931.

Principes de la philosophie [1644] [hereafter Principes ], II, xxxvii-xl, pp. 84–7 in vol. IX of the Œuvres de Descartes , edited by C. Adam and P. Tannery, Cerf, 1897-1910. Reference will also be made to the Discours de la méthode [1637], in vol. VI, pp. 1-78 of the Œuvres; to the Méditations métaphysiques [1641], in vol. IX; to the Traité de l’homme [1664], in vol. XI, pp.119-215.

Tractatus theologico-politicus [1670], in Œuvres complètes , Bibliothèque de la Pléiade, 1954, pp. 653–964; also Ethics [1677], in ibid ., pp. 357-652.

See below, Ch. 7, IV, for a fuller discussion of this question.

Op. cit ., p. 7.

Montesquieu will be referred to as M. in the footnotes.

Fontaine de La Roche, Examen critique de l’Esprit des lois [hereafter Examen critique ], first printed in the Nouvelles ecclésiastiques , 9th and 16th October 1749, reprinted in É. Labou-laye, Œuvres complètes de Montesquieu , Gamier, 1875-9, vol. VI, pp. 115–37. M. replied in his Défense de L’Esprit des lois (February 1750), and the Jansenist counter-replied in the Réponse à la défense de l’Esprit des lois [hereafter Réponse ], first printed in the Nouvelles ecclésiastiques , 24th April and 1st May 1750, reprinted in Laboulaye, op. cit ., vol. VI, pp. 209-37. See also the milder attack probably made by the Jesuit, le Père Plesse, Lettre au P.J.B. sur le livre intitulé l’Esprit des lois [hereafter Lettre au P.J.B .], first printed in the Mémoires de Trévoux , April 1749, reprinted in Laboulaye, op. cit ., vol. VI, pp. 101-13. M. made no public reply to le Père Plesse.

In spite of M.’s efforts at conciliation, the Esprit des lois was put on the Index in November 1751: see L. Bérard, ‘ L’Esprit des lois devant la congrégation de l’Index’, Revue des deux mondes , 1949, pp. 608–33. The Faculty of Theology of the Sorbonne examined the Esprit des lois twice, in 1750 and 1752. The comments made by the Faculty on various propositions drawn from the work have been reprinted in an invaluable article by C.-J. Beyer, ‘Montesquieu et 1a censure religieuse del’ Esprit des lois’ [hereafter ‘Montesquieu et 1a censure religieuse’, Revue des sciences humaines , 1953, pp. 105-31. The Sorbonne condemned the Esprit des lois in 1752, without taking into account M.’s Réponses et explications (reprinted in N. III, pp. 649-74, PI-II PP-1172-95 [see below, p. 11, n. 47 and p. 12, n. 48]), but its condemnation was not made public. The clearest accounts of the quarrel of the Esprit des lois are to be found in Jean Brethe de 1a Gressaye’s edition of the work, Les Belles Lettres, 1950-61, [hereafter Brethe de 1a Gressaye, Lois ], vol. I, pp. lxii-lxxxv, and in R. Shackleton, Montesquieu, A Critical Biography , Oxford University Press, 1961, pp. 356-77 [hereafter M .].

See Shackleton, M ., pp. 392–98.

See in particular: Montesquieu, L’Esprit des lois et les archives de La Brède , Bordeaux, Michel et Forgeot, 1904; and Montesquieu, ses idées et ses œuvres d’après les papiers de La Brède , Hachette, 1907.

Garnier, 1960.

Imprimerie nationale, 1900.

See above, p. 10, n. 40.

For details concerning this manuscript, see Shackleton’s article in N. III, pp. 567-77. Note that the manuscript does not represent the definitive version of the work. It is nevertheless very important to its understanding.

Œuvres complètes de Montesquieu , publiées sous 1a direction de M. André Masson, Nagel, 1950-55, 3 vols. Vol. I is a facsimile of the 1758 edition of M.’s works, which is generally considered to be based on the author’s final revisions, and which had three volumes. These will be referred to in the footnotes and in the text as N. I, i; N. I, ii; and N. I, iii, followed by a page number. N. I, i, contains Books I-XXI of the Esprit des lois [hereafter Lois ], together with D’Alembert’s É loge […] de Montesquieu and his Analyse de l’Esprit des lois- , N. I, ii, contains Books XXII-XXXI of the Lois , and the Défense de l’Esprit des lois [hereafter Défense ]; N. I, iii, contains the Lettres persanes [hereafter L. p .], the Considérations sur les causes de la grandeur des Romains et de leur décadence [hereafter Considérations ] and two minor works. There is, owing to the limitations imposed by the process of photographic reproduction, no critical apparatus in N. I, so the appearance of the critical editions of the L. p ., by Paul Vernière and of the Lois , by Jean Brethe de 1a Gressaye, is most timely. Vol. II of the Nagel edition, which will be referred to as N. II, contains the Pensées [hereafter P .] here published in the order of the manuscript for the first time, the Spicilège , the Geographica and the Voyages . Vol. III, which will be referred to as N. III, contains among many other works, M.’s contributions to the Bordeaux Academy, rejected drafts of parts of his major works, and his correspondence.

In the Bibliothèque de la Pléiade, Gallimard, 1949-51, 2 vols.. These will be referred to in the footnotes and in the text as PL I, and PL II, followed by a page number. When the text of the Nagel edition is at variance with that of the Pléiade edition, the reading of the former will be followed, except in the case of obvious misprints. The Œuvres complètes edited by D. Oster, Seuil, 1964, also suggested itself as a primary source of reference, but the Pléiade edition was preferred as it is more widely available and more scholarly. Apart from the fact that they do not contain the correspondence, another disadvantage of these two editions is that their editors have chosen the arbitrary Barckhausen classification of the Pensées rather than the manuscript order. This makes the dating of the Pensées impossible without reference to the Nagel edition. Pensée numbers in the Barckhausen order will be preceded by the abbreviation: Bkn.

Montesquieu: A Bibliography , New York Public Library, 1947; see also Gabeen, ‘A Supplementary Montesquieu Bibliography’, Revue internationale de philosophie , 1955, pp. 409-34; and for later information, Brethe de 1a Gressaye, Lois , vol. III, pp. xi-xxi and vol. IV, pp. xii-xxiii. More recent summary bibliographies are to be found in J. Dedieu, Montesquieu , ed. J. Ehrard, Hatier, 1966, pp. 219-23 (the title of this work is misleading, since it is in fact a reprint of Dedieu’s famous Montesquieu l’homme et l’Œuvre of 1943); and in J. R. Loy, Montesquieu , New York, Twane, 1968, pp. 183-5.

L. Desgraves, Catalogue de la bibliothèque de Montesquieu , Geneva, Droz, 1954 [hereafter referred to as D., followed by the catalogue number only]. See also Shackleton, ‘Montesquieu: Two Unpublished Documents’, French Studies , 1950, pp. 316-21.

‘Les Lectures de Montesquieu’, Revue d’Histoire littéraire de la France [hereafter RHLF ], 1957, PP-494–514

See Shackleton in N. II, pp. xxxv-xliii; then, for dates of composition of chapters of the Lois , see Shackleton in N. III, pp. 567-77. For the dates of writing (though not necessarily of original composition) of the Pensées , see Desgraves’ article, N. II, pp. xlv-lvii, together with Shackleton in N. II, pp. xxxvii-xxxix. Note that the dates are proposed with certain reservations (N. II, pp. xxxvii, n. a, and pp. li-lii; N. III, p. 575). The dates of writing of the Spicilège can be deduced approximately from the dates of the many press-cuttings which figure in the collection; nevertheless the chronological order is not strictly observed, cf . N. II, p. lxxi.

IIe Centenaire de l’Esprit des lois de Montesquieu, conférences organisées par la ville de Bordeaux , Bordeaux, Delmas, 1949 [hereafter IIe Centenaire ]; La Pensée politique et constitutionnelle de Montesquieu, Bicentenaire de l’Esprit des lois , Sirey, 1952 [hereafter Bicentenaire ]; Actes du congrès Montesquieu , Bordeaux, Delmas, 1956 [hereafter Congrès ].

See above, p. 10, n. 40. Shackleton’s biography supersedes the two previous ones: P. Barrière, Un Grand provincial , … Montesquieu , Bordeaux, Delmas, [1946], which is very readable, but incomplete; and L. Vian, Histoire de Montesquieu : sa vie et ses Œuvres d’après des documents nouveaux et inédits , Didier, 1878, which is still useful, but contains many factual errors.

Cf . N. II, pp. xlvi-xlvii and lxvii-lxxiii. Nos. 1-203 of the Spicilège were taken from a recueil by le Père P. N. Desmolets, librarian of the Paris Oratory and friend of M.. In the rest of the Spicilège M. made notes mostly on books and articles he had read; thus it differs from the Pensées , which is more a collection of personal reflections.

Fragments of the Traité des devoirs are to be found in Pp . 220 and 1251-80, Bkn. 597 and 602-629, N. II, pp. 93-4 and 331-55, PI. I, pp. 1126-7 and 1128-1150). A summary of the work was printed in the Bibliothèque française of 1726, and is reprinted in N. III, pp. 157-62, Pl. I, pp. 108-111.

The Essai appears in N. III, pp. 179-99. Reasons for its attribution to M. are given in N. III, pp. 175-8; certain striking parallels between the Essai and various works by M., are made by P. Dimoff in ‘La place dans l’Œuvre de Montesquieu de lŒ Essa. touchant les lois naturelles’, RHLF , 1957, pp. 481-93.

‘ L’Essai touchant les lois naturelles estil de Montesquieu?’, in Mélanges offerts à Jean Brethe de la Gressaye , Bordeaux, Bière, [1967], pp. 763–775.

Cf . D’Aguesseau, Instructions sur les études propres à former un magistrat (1716), in Œuvres choisies , Didot, 1886, pp. 226–31. According to M.’s friend the abbé de Guasco, “Montesquieu était obligé par son père de passer toute la journée sur le Code ” (cited by Vian, op. cit ., p. 21). It is unfortunate that M.’s work on la manière d’apprendre ou d’étudier la jurisprudence (see Shackleton, M ., p. 408), which might have told us more about his attitude both to Roman law and to natural law, is lost.

Cf . H. Barckhausen (ed.), Statuts et règlements de l’ancienne université de Bordeaux (1441-1793), Libourne, Bordeaux, G. Bouchon, 1886, pp. 86–7 and 89-90 (citing documents relating to the 168o’s, but the situation does not appear to have been very different in the early 1700’s, cf. ibid ., pp. 117-8). In Paris, too, Roman law dominated the syllabus, cf . C. Jourdain, Histoire de l’Université de Paris au XVIIe et au XVIIIe siècle , Paris, 1862-66, reprint, Brussels, 1966, p. 290 (citing documents relating to the 1700’s). Apart from the introduction of a small amount of French law, it is doubtful whether the situation had altered much since the days of Corneille’s Dorante, who complains of his having been obliged to study the Corpus and its numerous interpreters ( Le Menteur , 11. 322-31, in Œuvres de Corneille , ed. Marty-Laveaux, Hachette, 1862, vol. IV, p. 158).

See Shackleton, M ., pp. 17–18.

Cf . R. Derathé, Jean-Jacques Rousseau et la science politique de son temps , Presses Universitaires de France, 1950, p. 29. Unlike Germany and Switzerland, France had no chairs of natural law ( ibid ., p. 28).

Proof of the growing interest in natural law is provided by the number of editions of translations of Grotius, Pufendorf and Locke: see Derathé, op. cit ., pp. 424, 426-7, and 437. This trend may be seen as one sign among many of the growing dissatisfaction among intellectuals with the political philosophy of the French monarchy.

Op. cit ., p. 224; cf . Derathé, op. cit ., p. 66.

Even in the Lettres persanes , with its rather vague allusions to ideas also found in the works of Grotius, Hobbes and Locke, we do not have the impression that M. had studied the philosophy of natural law very recently or very deeply: perhaps he was relying on recollections of earlier reading? It is not until the time of the Traité des devoirs that we have textual proof of M.’ s knowledge of Pufendorf.

The works of Grotius and Pufendorf on natural law were either inherited by M. or acquired before 1732 ( cf . Desgraves, op. cit ., pp. xv-xvii and p. 241). M. acquired Aristotle’s Politics in 1738 ( ibid ., p. xix).

Hence we do not consider it helpful to note in each case whether or not M. owned a particular work. He had access to many libraries besides his own ( cf . Shackleton, M ., pp. 55, 214, 230), and can have had little difficulty in obtaining any work he wanted.

Printed in N. III, pp. 1102-5 and 1538-40. In his article on ‘The Authenticity of the Letters on the Esprit des lois attributed to Helvétius’, Bulletin of the Institute of Historical Research , 1951, pp. 19–43, R. Koebner claims that these letters were forged by Helvétius’ editor, Lefebvre-La Roche. Koebner’s case is fairly convincing, without being conclusive.

Émile, ou de l’éducation , in Œuvres complètes , edited by B. Gagnebin and M. Raymond, Bibliothèque de la Pléiade, vol. IV, 1969, p. 836.

J. B. L. Crevier, Observations sur le livre de l’Esprit des lois , Desaint et Saillant, 1764, p. 4.

In A.-L.-C. Destutt de Tracy, Commentaire sur l’Esprit des lois de Montesquieu, suivi d’observations inédites de Condorcet sur le vingt-neuvième livre du même ouvrage , Desoer, 1819, p. 406.

G. F. F. Boulenger de Rivery, Apologie de l’Esprit des lois, ou réponses aux observations de M. de L. P ., Amsterdam, 1751; [F. Risteau], Réponse aux Observations sur l’Esprit des lois , [Avignon?], 1751; d’Alembert, Analyse de l’Esprit des lois [1755], N. I, i, pp. xxxiv-lii.

Suite de la Défense de l’Esprit des lois [1751], in Laboulaye ed. of M.’s works, vol. VI, p. 250. La Beaumelle was a friend of M.

Siècle de Louis XIV, Catalogue de la plupart des écrivains français qui ont paru dans le siècle de Louis XIV , in Œuvres complètes de Voltaire , Garnier, 1877-85 [Moland edition], vol. XIV, p. 107.

Philip Dormer Stanhope, Earl of Chesterfield, Miscellaneous Works , Dilly, 1777, vol. I, P. 273.

‘Publicistes du XVIIIe siècle: Montesquieu — L’Esprit des lois ’ Revue contemporaine , 1858, p. 55.

‘La Monarchie de Montesquieu et la république de Jean-Jacques’, Correspondant , 1872, p. 302.

Paul Janet, Histoire de la science politique dans ses rapports avec la morale [1858, 1872], Alcan, 1887, vol. II, p. 379; Albert Sorel, Montesquieu [1887], Hachette, 1924, p. 108.

Op. cit., p . 97.

A. Comte, Cours de philosophie positive , Schleicher, 1908, vol. IV, pp. 127–8; F. Alengry, ‘Montesquieu’ in Essai historique et critique sur la sociologie chez Auguste Comte , Alcan, 1900, pp. 389-403.

É. Durkheim, Quid Secundatus “politicŒ scientiŒ” instituendŒ contulerit , Thèse de Bordeaux, 1892, translated as ‘Dans quelle mesure Montesquieu a-t-il contribué à constituer la science des sociétés’, Revue d’histoire politique et constitutionnelle , 1937, p. 447 [hereafter Thèse de Bordeaux ].

L. Brunsvicg, Le Progrès de la conscience dans la philosophie occidentale , Alcan, 1927, vol. II, pp. 492–4; P. Hazard, La Pensée européenne au XVIIIe siècle, de Montesquieu à Lessing , Boivin, 1946, vol. II, p. 105.

A History of Political Theory , Harrap, 1937, p. 558.

‘Montesquieu’, from the Proceedings of the British Academy, volume XLI, Oxford University Press, read October 19th, 1955, pp. 290–93.

‘Montesquieu’, in Études franciscaines , 1909, p. 615.

Montesquieu et la tradition politique anglaise en France , Gabalda, 1909, p. 169; Montesquieu , Alcan, 1913, p. 184; Montesquieu Vhomme et l’Œuvre , Boivin, 1943, pp. 27-28 and 132-48.

Le Spinozisme de Montesquieu , Pichon et Durant Auzias, 1911, p. 63, etc.

F. T. H. Fletcher, Montesquieu and English Politics (1750-1800) , Arnold, 1939, p. 271; J. Starobinski, Montesquieu par lui-même , [1953], Seuil, 1961, pp. 86-7; P. Vernière, Spinoza et la pensée française avant la Révolution , Presses Universitaires de France, 1954, vol-II PP-456-7; L. Althusser, Montesquieu, la politique et l’histoire [1959], Presses Universitaires de France, 1964, pp. 8-21; Shackleton, M ., pp. 247-53; J. R. Loy, op. cit ., esp. p. 112.

‘Le Déterminisme historique et l’idéalisme social dans l’Esprit des lois ’ [1916], Études d’histoire littéraire , Champion, 1929, pp. 135–63.

M. Raymond, ‘L’Humanisme de Montesquieu’, in his Génies de France , Neuchâtel, La Baconnière, 1942, pp. 124–49; B. Grœthuysen, Montesquieu , Geneva and Paris, Éditions des trois collines, 1947, pp. 45-72; P. Barrière, ‘L’Humanisme de l’Esprit des lois’ IIe Centenaire , pp. 31-64.

Les Grandes doctrines de sociologie historique: Montesquieu, Auguste Comte, Karl Marx, Alexis de Tocqueville, les sociologues et la révolution de 1848 , Les Cours de la Sorbonne, Centre de documentation universitaire, [1960], pp. 14–55.

Nature and Culture: Ethical Thought in the French Enlightenment , Baltimore, Johns Hopkins Press, 1963, pp. 25–9.

L’Idée de nature , vol. II, p. 718–36; Politique de Montesquieu , Colin, 1965, pp. 10-11, etc.; cf . also ‘Les Études sur Montesquieu et l’Esprit des lois’, L’Information littéraire , 1959, pp. 55-66, and the notes in Ehrard’s edition of Dedieu’s Montesquieu l’homme et l’œuvre .

‘Politics and Morals in the Thought of Montesquieu’, in Studies on Voltaire and the Eighteenth Century , vol. LVI, pp. 845–91, esp. pp. 845, 850, 856-9, and 890-1. The same point may be made in respect of C. P. Courtney’s valuable new study, ‘Montesquieu’, in French Literature and its Background , ed. J. Gruickshank, vol. III, The Eighteenth Century , O.U.P., 1968 pp. 30-44, esp. p. 38. Similarly, G. Benrekassa, in his Montesquieu , Presses Universitaires de France, 1968, pp. 30 and 64, shows convincingly, but in general terms only, that M. believed in natural rights; but he fails to link this belief with the tradition of natural law.

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Waddicor, M.H. (1970). Introduction to Natural Law and to the Work of Montesquieu. In: Montesquieu and the Philosophy of Natural Law. Archives Internationales D’Histoire des Idées / International Archives of the History of Ideas, vol 37. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-3238-4_1

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Natural Law, Liberalism, and Morality: Contemporary Essays

McCormick Professor of Jurisprudence

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This book brings together leading defenders of natural law and liberalism for a series of frank and lively exchanges touching upon critical issues of contemporary moral and political theory. The book is an example of the fruitful engagement of traditions of thought about fundamental matters of ethics and justice.

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