¹ Kelsen, H., Die Philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, trans. Kraus, W. H. under the title, “Natural Law Doctrine and Legal Positivism,” in General Theory of Law and State (Cambridge, Mass., 1949), p. 446.Google Scholar

² Ibid., p. 445.

³ Cf. Federalist, No. 43 (Madison), ca. fin.

⁴ For a recent and reasonably complete survey of these avatars, cf. Crowe, M. B.; The Changing Profile of the Natural Law (The Hague, 1977).CrossRefGoogle Scholar

⁵ Finnis, J., Natural Law and Natural Rights. Clarendon Law Series, ed. Hart, H. L. A. (Oxford, 1980. Pp. xv + 425. $39.50. Paper, $19.50.)Google Scholar

⁶ E.g., Thomas Aquinas, S.T., 1, 96, 4; I–II, 72, 4; 95, 4; II–II, 109, 3, ad 1^m; 114, 2, ad 1^m; 129, 6 ad 1^m; De Regno, I, 1; In Ethic., IX, lect. 10, no. 1891; In Polit., I, lect. 1, etc.

⁷ Cf. Th. Aq., Q.D. de Virt. Card., a. 1, c; In Polit., I, lect. 1, no. 39.

⁸ Th. Aq., S.T., I–II, 94, 2; cf. Quodlibetum I, 4, 8: “Inclinationes naturales maxime cognosci possunt in his quae naturaliter aguntur absque rationis deliberatione; sic enim agit unumquodque in natura sicut aptum natum est agi.” Also S.T., I, 60, 5.

⁹ As Locke puts it, the natural law is “intelligible and plain” only to the “studier of that law,” Second Treatise of Civil Government, II, 12Google Scholar; cf. ibid., IX, 124: “For though the law of nature be plain and intelligible to all rational creatures, yet men, being biased in their interest as well as ignorant for want of studying it, are not apt to allow of it as a law binding to them in the application of it to their particular cases” (emphasis mine). See the discussion of this early modern view by Rousseau, who points out that “it is impossible to understand the law of nature and consequently to obey it without being a great reasoner and a profound metaphysician” (Discourse on the Origin and Foundations of Inequality among Men, trans. Masters, R. [New York, 1964], p. 94).Google Scholar

¹⁰ E.g., Hobbes, De Ciue, I.1, 7: “Therefore the first foundation of natural right is this, that every man as much as in him lies endeavor to protect his life and members.” Leviathan, I, 13–14.Google Scholar

¹¹ Finnis readily admits that, when it comes to that, the believer in divine revelation has an easier time of it since his faith tells him that the hoped-for convergence of the common good and the well-being of persons is insured by an allknowing and loving God, albeit “in ways often unintelligible to us” (p. 406). He can thus love the common good “for a new reason,” namely, because God loves it. The position of the philosopher is not as enviable, but neither is it altogether hopeless. The solution to the problem, if any exists, is to be found, not in Stoic or Kantian moralism (pp. 373–78), but in Plato's concept of logismos (which again translates into “practical reasonableness,” p. 408). The person who allows himself to be guided by reason need not view life as tragic. He can refuse to take success or failure too seriously and see himself as participating in a kind of cosmic game which, unlike practical reasonableness, has no point beyond itself, as Plato would have taught in Book VII of the Laws. The explanation has its obvious limitations, however, and Finnis himself recognizes that the “structure of practical reasonableness” remains “finally unproved.” The only reason for not discarding it is that it is still “more reasonable than any logically possible alternative structures” (p. 405). Whether it is or not is the question by which his book may be thought to stand or fall. For a slightly different and perhaps more faithful interpretation of Laws VII, 803^b-c, see Pangle, T. L., The Laws of Plato (New York, 1980), pp. 484f.Google Scholar

¹² Cf. Th. Aq., S.T., I–II, 56, 3; 57, 4; 57, 5, ad 3^m; 64, 3; II–II, 47, 4; 47, 13, ad 2^m; In Ethic., VI, lect. 7, no. 1200.

¹³ Aristotle Ethic. Nic. I, 3, 1094^b20f; 7, 1098^a20f.; II, 2, 1104^alf. Metaphysics, II, 3, 995^a6f.

¹⁴ See, among innumerable references, S. T., I, 60, 5; I–II, 21, 3–4; 90, 2; 92, 1, ad 3^m; 96, 4; II–II, 58, 5; 61, 1; 64, 5; 65, 1.

¹⁵ Aristotle, Ethic. Nic., V, ll, 1138^a4f.

¹⁶ Ibid., 1138^a10f. Cf. Th. Aq., S.T., II–II, 59, 3, ad 2^m; 64, 5.

¹⁷ S. T., I–II, 21, 4, ad 3^m: “Homo non ordinatur ad communitatem politicam secundum se totum et secundum omnia sua.”

¹⁸ Ibid., 96, 4: “Cum enim unus homo sit pars multitudinis, quilibet homo, hoc ipsum quod est et quod habet, est multitudinis.”

¹⁹ E.G., S.T., I, 29, 4; 30, 4; De Pot., 9, 2. Cf. Maritain, J., The Person and the Common Good 1947; Notre Dame, 1966), p p. 73–74.Google Scholar

²⁰ Maritain, Person and Common Good, p. 61.

²¹ Cf. S.T., I–II, 109, 3: “Manifestum est autem quod bonum partis est propter bonum totius. Unde etiam naturali appetitu uel amore unaquaeque res particularis amat bonum suum proprium propter bonum commune totius uniuersi.” Also I–II, 21, 4; II–II, 26, 3; Q.D. De Caritate, 2, c.

²² Thomas's remarks on this controversial subject are obviously not meant to be interpreted in any collectivist or totalitarian sense. Civil society is not itself a person, even though it is often compared to one. Its unity is only a “unity of order” (unitas ordinis), as distinguished from the substantial unity of the individual person (cf. In Ethic., I, lect. 1, n. 5). Its function is to enable its citizens to attain their full development and it deserves its name only to the extent to which it promotes the ends to which human nature is ordered. The human beings who compose it are not destroyed by it, as they would be if they were parts of a substantial whole. The perfection that they reach through it remains intrinsic to them. Differently stated, the common good is not an alien good but the “proper good” (bonum proprium) of those who share in it (cf. Contra Gent., III, 24). If the common good were not distributed among the members of the community, it would not be truly common. Only on this condition can it be an object of desire. The good sought by any being is necessarily its own good (bonum suum), whether it be a particular good or the common good, for which it has an even greater natural love (S. T., I, 60, 5, c. and ad l^m). The need for justice and civic virtue is rooted in the potential conflict between these two types of good or the tendency of the part to set itself up as the whole. Were it not for this conflict, moral virtue would be expendable. Indeed, according to Aristotle, the perfect man stands in relation to others as the whole in relation to the part (Pol. III, 17, 1288^a27). Having no desire for goods that cannot be shared, he appears as a god among human beings (ibid., III, 13, 1284^a10; see also, on the absence of moral virtue among the gods, Ethic. Nic. X, 8, 1178^b10f.). He is not subject to the common good because he is himself, so to speak, the common good and hence the source of everyone else's perfection. Only in this ideal case is the good of the individual commensurable with the common good. It matters little whether such a perfect being ever existed or can exist since the purpose of Aristotle's observation is merely to bring to light the problem inherent in any form of political rule. — On Thomas's understanding of the common good, see Ch. De Koninck, , De la primauté du bien commun contre les personnalistes (Quebec and Montreal, 1943), pp. 7–79Google Scholar. De Koninck's essay was widely interpreted at the time as a silent attack on Maritain and was so interpreted by Maritain himself in his restatement of the problem, The Person and the Common Good, p. 16, n. 6. See also Eschmann, I. Th., “In Defense of Jacques Maritain,” Modern Schoolman, 22 (1945), 183–208CrossRefGoogle Scholar; Ch. De Koninck, , “In Defense of Saint Thomas: A Reply to Father Eschmann's Attack on the Primacy of the Common Good,” Laval théologique et philosophique, 1 (1945), 9–109CrossRefGoogle Scholar; Simon, Y., “On the Common Good,” Review of Politics, 6 (1944), 530–533CrossRefGoogle Scholar. Simon, who professes to be in general agreement with De Koninck's views, denies that they were directed against Maritain, with whom he also agrees.

²³ Suarez, De Legibus, I.2, 5. Grotius, De lure Belli et Pacis, I.1, 4. The transition to the new understanding of “right” (ius) as a “faculty” (facultas) appears to have been facilitated to some extent by the frequent appearance of the word ius in the Vulgate. Suarez, ibid., refers to Genesis 23:4, where Abraham is shown negotiating with the Hittites for the purchase of a grave in which to bury Sarah. The text reads: “Give me property among you for a burying place (^ahuzzaiqueber; Sept.: ktêsin taphou) that I may bury my dead out of my sight.” The Latin version, da mihi ius sepeliendi, could easily suggest that Abraham was demanding, not a plot of land (the first to be acquired by a member of the Chosen Race in Canaan), but the right to bury his dead. Suarez takes iu sepeliendi to mean facultas sepeliendi. Cf. also Genesis 31:19–21: Jacob, who has finally outwitted Laban, flees “with all that he had,” which in the Latin text is rendered by “everything to which he had a right”: omnia quae iuris sui erant. For an account of the historical evolution of the notion of right as a faculty, cf. Tuck, R., Natural Rights Theories; Their Origin and Development (Cambridge, 1979).CrossRefGoogle Scholar

²⁴ E.g., De Ciue I. 1, 2: “The greatest part of those men who have written aught concerning commonwealths, either suppose, or require us, or beg of us to believe that man is a creature born fit for society. The Greeks call him zôon politikon; and on this foundation they so build up the doctrine of civil society as if for the preservation of peace and the government of mankind there were nothing else necessary than that men should agree to make certain covenants and conditions together, which themselves should then call laws. Which axiom, though received by most, is yet certainly false and an error proceeding from our too slight contemplation of human nature.”

²⁵ Finnis, p. 341, n. 42, with references to S. T., I–II, 100, 1 and II–II, 58, 3, ad 2^m.

²⁶ Cf. S.T., I–II, 17, 1.

²⁷ Gregory of Rimini, In Lib. Secundum Sent., dist. 34, qu. 1, art. 2; Gabriel Biel, In Secundum Lib. Sent., dist. 35, qu. 1, art. 1, and the other references cited by Suarez, De Legibus, II. 6, 3.

²⁸ S. T., I–II, 17, 1: “Primum autem mouens in uiribus animae ad exercitum actus est uoluntas. … Cum ergo secundum mouens non moueat nisi in uirtute primi mouentis, sequitur quod hoc ipsum quod ratio moueat imperando sit ei ex uirtute uoluntatis.” Cf. I–II, 90, 1, ad 3^m.

²⁹ Ibid., I–II, 17, 1.

³⁰ Ibid., I–II, 91, 2, ad 2^m. As regards irrational creatures, the natural law is said to be a law only per similitudinem, i.e., by analogy or by reason of a certain resemblance with the manner in which it applies to human beings. See also I–II, 93, 5, c. and ad 1^m.

³¹ I–II, 96, 5: “Lex de sui ratione duo habet: primo quidem quod est regula humanorum actuum; secundo, quod hab et uim coactiuam.” Cf. I–II, 90, 3, ad 2^m.

³² Cf. I–II, 18, 5, ad 3^m; 92, 2; 93, 6, ad 2^m; 100, 9. The principles of the natural law are generally referred to as “precepts,” e.g., I–II, 94, 1, 2, and 6. But precepts, as distinguished from simple rules or principles, are binding under pain of sanction. Cf. I–II, 99, 5: “Quaedam moralium praecise praecipiuntur uel prohibentur in lege, sicut Non occides, Non furtum facies. Et haec proprie dicuntur praecepta.” I–II, 100, 9: “Praeceptum legis habet uim coactiuam. Illud erge directe cadit sub praecepto legis ad quod lex cogit. Coactio autem legis est per modum poenae.” Finnis notes perceptively that for Plato “obligatum … is not the framework or final authoritative category of ‘moral’ thought” (p. 409). But Plato was not a natural law thinker. He spoke only of natural “right,” which is not quite the same thing, however frequently the two expressions may be confused, as they are, for example, in the article by Maguire, J. P., “Plato's Theory of Natural Law,” Yale Classical Studies, 10 (1947), cited on p. 413.Google Scholar

³³ Contra Gentes, III, 141, 3.

³⁴ This paragraph and the next one reproduce with minor additions and modifications an argument previously developed in “Augustine, Thomas Aquinas, and the Problem of Natural Law,” Mediaevalia, 4 (1978), 197–198.Google Scholar

³⁵ S.T., I–II, 100, 1; 104, 1, ad 3^m: “Ad tertium dicendum quod etiam in his quae ordinant ad Deum quaedam sunt moralia quae ratio fide informata dictat, sicut Deum esse amandum et colendum.”

³⁶ I–II, 100, 1: “Quaedam enim (praecepta moralia) sunt quae statim per seratio naturalis cuiuslibet hominis diiudicat esse facienda vel non facienda, sicut Honora patrem tuum et matrem tuam, et Non occides, Non furtum facies. Et huiusmodi sunt absolute de lege naturae.”

³⁷ I–II, 71, 6, ad 5^m: “A theologis consideratur peccatum praecipue secundum quod est offensa contra Deum; a philosopho autem morali, secundum quod contrariatur rationi.”

³⁸ Suarez, De Legibus, I.15, 13: “Nam lex, imponendo necessitatem uirtutis seu honestatis, consequenter facit ut transgressor legis sit dignus poena saltern apud Deum, quia suam obligationem lege impositam non obseruat. Quod locu habet tarn in lege naturali quam in positiua, diuina, uel humana, quia supposita lege actus est inordinatus, et ilia dignitas poenae intrinsece sequitur ex malitia actus, etiamsi malitia fortasse fuerit ex occasione legis positiuae. Est tamen differentia in hoc inter legem naturalem et positiuam, quod lex naturalis, licet faciat uel ostendat actum esse malum, tamen ut est mere naturalis non taxat modum uel quantitatem poenae. Nulla enim ratione intelligi potest hoc fieri sine decreto alicuius liberae uoluntatis.” Cf. S. T., I–II, 95, 2: “Lex naturae habet quod ille qui peccat puniatur; sed quod tali poena puniatur, hoc est quaedam determinatiolegis naturae.”

³⁹ Thomas's muted reservations about the complete naturalness of the natural law come out in other ways as well. One of them is hinted at in his treatment of suicide, which is said to be contrary to the natural law and which is “always” a grievous sin. By taking his own life, the suicide commits an injustice toward the city and he commits an injustice toward God, in whose image he was created; cf. I–II, 59, 3, ad 2^m; 64, 5. That such an act should be unjust from the point of view of the city is obvious enough, since the city is thereby robbed of the services of one of its members. That it should likewise be unjust from God's point of view is obvious only to someone who accepts the biblical teaching regarding man's creation in the image of God. The more delicate problem, however, is that the city is not necessarily hurt and might even be helped by the loss of an unproductive member, especially if it should be stricken with famine and unable to support its population. What reason sanctions in such unusual circumstances could conceivably differ from what divine revelation imposes as a universal duty. Suicide is also ruled out on religious grounds by Cebes and Simmias in the Phaedo, 61–62. Socrates does not object to the argument, although it is not completely clear whether it reflects his own thinking on the matter. Much depends on what one makes of the ensuing discussion, in which Socrates defends his resolve to die as both “wise” and “just,” i.e., as something good for himself as well as for his friends.

⁴⁰ The origin of the natural law doctrine is unfortunately shrouded in mystery. Scholars have generally traced it back to the Stoics, but H. Koester has shown that the expression itself does not occur in any of the surviving fragments from the early Stoa. It is attributed to Zeno of Cittium by Cicero in one and only one text whose authenticity is not corroborated by independent evidence; De Nat. Deor. I. 14, 36: “Zeno … naturalem legem diuinam esse censet, eamque uim obtinere recta imperantem prohibentemque contraria.” The term reappears a hundred years later in Philo, who does not seem to have been influenced by Cicero. Cf. Koester, H., “NOMOS PHUSEÔS: The Concept of Natural Law in Greek Thought,” in Religions in Antiquity: Essays in Honor of E. R. Goodenough, ed. Neusner, J. (Leiden, 1968), pp. 521–541Google Scholar. The close textual parallels between Philo and Cicero nevertheless point to a common source which, according to one hypothesis, could be Antiochus of Ascalon; cf. Horsley, R. A., “The Law of Nature in Philo and Cicero,” Harvard Theological Review, 71 (1978), 35–59.CrossRefGoogle Scholar

⁴¹ On the general unpleasantness of the nonvirtuous life, cf. Aristotle Politics VII, 1, 1323^a27–34: “No one would maintain that he is happy who has not in him particle of courage or temperance or justice or prudence, who is afraid of every insect that flutters past him, and will commit any crime, however great, in order to gratify his lust for meat or drink, who will sacrifice his dearest friend for the sake of a farthing, and is as feeble and false in mind as a child or a madman.”

⁴² Nietzsche, Beyond Good and Evil, aph. 39 and 197. Thomas, who was not unaware of the problem, notes that the wicked are sometimes punished by being granted the prosperity that incites them to evil; Contra Gentes, III, 141, 6.