There are two approaches to Natural Law: Traditional Natural Law theory, advocated by Thomas Aquinas, and the New Natural Law theory, first coined by Grisez in 1995, and best articulated by John Finnis in Natural Law and Natural Rights.[1]Traditional Natural law draws on metaphysical presuppositions to ground reason and nature, while New Natural Law refutes the claim that moral norms must derive from metaphysical claims of human nature. Rather, it proposes practical reasoning and moral judgement as sufficient tools for ethical decision making. While both Grisez and Finnis are devout Catholics who privately adhere to Thomistic metaphysics, they claim reason alone can identify basic goods and ethical actions. In this essay I examine the foundations of Traditional Natural Law theory as Aquinas espouses, and compare a Thomistic account of the common good with that of Finnis. I do not examine the specific functioning of New Natural Law, but rather focus on its application within a large political community. I claim that while New Natural Law theories provide legitimate heuristics for personal ethics, they fail to provide a system for the public common good when metaphysical conflicts differ.
Common Good and Traditional Natural Law
Aquinas articulates the natural law as the common promulgation of the eternal law pertaining to reason.[2] Mankind can discern natural law through practical reason as a means to the final end of human life, happiness.[3] This law is ordained to the happiness of the individual and the community in which he finds himself; it is concerned with the common good.[4] This common good belongs to the whole society, as one man’s good is for his household, one household’s good for the community, and the community’s good for the common good of the state. This interdependency is necessary to the natural order of political affairs.[5] Thus, any given law is a rule of practical reason from the ruler, for the sake of the common good.[6] Aquinas has in mind here a dictate from a single ruler or a select group of lawmakers, not a democratic agreement on specific laws.[7] As we will see, this difference between Aquinas’s political sphere and ours complicates things for proponents of natural law in modern political debate. Traditional natural law, is then a theory of practical reasoning, in which rulers discern measures and obligations to bring about the common good.
Aquinas grounds natural law in eternal law. He assumes and requires metaphysical presuppositions of an ordered cosmos. The eternal law is the unchanging truth of God, which guides men toward true happiness.[8] It is the perfect proper order of all natural beings. Moreover, the eternal law dictates the proper order of virtues within rational creatures. Aquinas claims the eternal law is promulgated through scripture and the incarnation of Christ.[9] However, promulgated in finite ways, the eternal law in its full scope and detailed application remains beyond understanding of mankind. The natural law is then the rational creature’s participation in the eternal law.[10] Creatures are rational because they participate in a share of the Eternal Reason.[11] This is not to say humans identify and follow the eternal law; rather, no one knows the eternal law, but pursues it through his faculties of practical reason.[12]
For Aquinas, reason is the best means of rational creatures to discern the eternal law. Mankind has a natural inclination to that which is in harmony with the eternal law. By this inclination, one can identify basic goods and evils, and craft basic structures of the natural law.[13] Rational creatures are naturally adapted to pursue and receive virtue. The natural law is the result of this rational attempt to seek man’s natural ends.[14] Rational creatures are able to discern the fundamentals of natural law through rational reflection upon their natural inclinations toward the eternal law.
Aquinas is clear that practical reason is concerned with practical matters; consequently, human laws are practical, but lack the inerrancy of either the eternal law or the sciences.[15] While all men seek the same good, eternal happiness, they form different judgements on human acts and form contrary laws. Thus, human laws and the natural law must be aided by the eternal law in determining the details of common goods and providing clarity of action.[16] This eternal law is the divine wisdom directing all actions toward their proper aim. It distinguishes between competing human judgements of how to pursue one’s teleological end.[17] For Aquinas, man’s reason is not a faculty independent of metaphysical foundations, but rather a participation seeking the unchangeable truth of the eternal law.[18] This traditional account of rationality requires the foundational presuppositions about the nature of mankind.
The natural law, as articulated by Aquinas is necessarily concerned with the common good. This claim is a rational extension of the individual’s good depending on the good of his neighbor, as well as an understanding that humans are naturally interdependent in their common pursuit of the good. Aquinas however, claims that because all men seek the same end, a happiness rooted in the proper pursuits of the good, one ought to view her neighbor as a collaborator. The common good requires this shared account of man’s proper ends. He presumes that a lawmaker intends to lead others to virtue. Drawing on Aristotle, he suggests one pursues this not to attain utilities from another, but because it is a natural end of man to do so.[19] True happiness includes the promotion of happiness in others. Notably, this is absent from Finnis’ list of basic goods. Since one cannot coerce the flourishing of another, the law promotes the development of all those under the law. The natural law seeks the good of all its citizens, because of the intrinsic value Aquinas places one’s neighbor and promoting a shared teleology.
There is a consequent schism in the motivations for traditional and new theories of natural law, reflected in their articulation of how one pursues the common good. Aquinas advocates for a few trained, rational leaders to promote the natural law for the entire community through law.[20] While all humans have the capacity for practical reason, he notes that it is not actualized equally in all people. Thus, humans differ in their detailed conception of the natural law and likewise in their ordering of human goods. Different conceptions of the same truth lead to different accounts of personal ethics.[21] To deal with these differences, the members of a society must submit themselves to human laws to order their pursuits of happiness. This is a rational approach for traditional theories of natural law, as human laws rely on the natural law, which itself relies on a common eternal law and eternal teleology. It is fair for the most rational to discern a means to the common good that all citizens might reach a shared teleology.[22] Aquinas’s foundation of a common eternal law remains a prerequisite to ground the common good within the state.
The three crucial parts of Aquinas’s law depend on his metaphysical presuppositions: man’s capacity for practical reason, his shared end, and the universality of the natural law. Traditional theories of natural law reliy on practical reason to guide the state from the eternal law, to understandings of the natural law, to human laws which guide the whole society toward happiness. Rationality is mankind’s ability to identify truths of the eternal law, and the natural law is those truths which are identified; human laws are the application of those identified truths for the sake of mankind’s shared aim of attaining happiness. Furthermore, Aquinas notes the tendency for varying interpretations of natural law. While all men can identify common goods, the hierarchy and means of attaining these goods differ. He places the responsibility of discerning the common good on a few select individuals, and requires all members of a society to submit to their discernment. Traditional accounts of the common good rely on metaphysical foundations for a clear understanding and instantiation of the common good.
The Common Good and New Natural Law
In a free and pluralistic society, conflict is inevitable and New Natural Law has no means of resolving this conflict. Finnis goes beyond traditional accounts of metaphysical commitments or brute rationality in crafting a system of natural rights from natural law. Finnis argues for a theory of the common good rooted “a shared objective.”[23] Rather than base a group on its shared relationships or its geographical proximity, he bases it on a mutual teleological aim. Since he identifies that all men seek certain basic values, the common good of a community begins with “the shared conception of the point of continuing co-operation.”[24] Grounding a community in a shared teleology necessarily garners support from its citizens, but fails to scale to large communities whose members prioritize differing basic goods. New Natural Law cannot sustain a common good in a pluralistic society.
The New Natural Law theory of a common good finds its greatest strength in its universality. Finnis identifies basic goods common goods universal to all peoples. None of these basic goods can take precedent over another and the individual’s basic goods cannot take precedent over the basic goods of another.[25] Communities form around relationships of either friendship or utility; large political community exists primarily as the latter, a kind of business arrangement between self-interested individuals pursuing basic goods.[26] The common good is nothing more than the “set of conditions which enable members of a community to attain for themselves reasonable objectives.”[27] This final phrase “reasonable objectives” leaves New Natural Law open to value pluralism within the state, and establishes the conditions for internal fragmentation.
Finnis, argues for the primacy of the common good from a utilitarian relationship with others. One’s own flourishing depends on the flourishing of one’s neighbor.[28] Aquinas presupposed a common teleology to ground the common good, something absent from Finnis’s account. Within any society, certain subsets may have differing teleologies. Despite having common conceptions basic of human goods, the aims of these groups lead to various common goods. Finnis identifies his seven goods through reason and anthropological survey. He finds the goods common to all societies, but that is not to say he identifies a common teleology in all societies. Rather, he may just find good that varying teleologies share. The presence of common means is not evidence of common ends. Two men might gather tires, a transmission, an engine, seats, a chassis, gears, and gasoline, but one builds tractors to provide food for a nearby village, while to other builds tanks to enslave the same village. The universality of common goods indicates neither common ends nor common societies in which those ends arise.
Most agree that Finnis’ basic goods are common all people and desired based on their own merits.[29] However, New Natural Law neither asserts nor entails a hierarchy of objectives, nor does it suggest each member of a society pursue these rights in similar ways. One may seek religion through devote Catholicism, while another seeks it through atheism. Likewise, one might pursue knowledge through science, another through meditation. Finnis articulates no conditions which must attain for this pursuit, only that each member be free to pursue these goods.[30] With no specific conditions of the common good, conflict between these pursuits is inevitable, and unlike Rawls’ Theory of Justice, New Natural Law cannot advocate any overriding virtue, such as tolerance, to make sense of these tensions.[31]
In contrast to Thomistic accounts of natural law, Finnis denies the necessity of the eternal law for moral decision making. He does not deny the possibility, or even the benefit of such commitments, acknowledging that all members of a society have at least some metaphysical claims; he even considers these claims basic goods to be pursued.[32] By detaching natural law from the eternal law, he opens the common good pluralistic societies in which articulations of eternal law may vary. Finnis instead, holds that while metaphysics may differ, all men share a primary conception of the natural law. However, in departing from shared conceptions of the eternal law, he also departs from primary motivations for adhering to a conception of human laws one disagrees with. If human laws cannot trace their roots to shared conceptions teleology, one is better suited to pursue their own convictions than sacrifice for the common good.
Finnis’s project proposes a logical progression from self-evident basic goods to a theory of the natural law. He argues that common goods indicate a common teleology. This shared pursuit of happiness establishes a common good in which all men can pursue happiness as they deem rational. The natural law is then that theory which ensures this common good. I have attempted to show, however, that Finnis cannot extrapolate from basic goods to a shared teleology. Without this teleology, the common good only extends to those who share common conceptions of human nature, and the interpretation of the natural law of one’s neighbor. Thus, there is little motivation for one to forsake their own teleology for the loose shared aims of the greater polis.
New Natural Law’s Pluralistic Egoism.
New Natural Law theories, relying solely on rationality to distinguish the details and hierarchy of basic goods result in egoism. Finnis appeals to the utility of relationships for promoting the common good. Under New Natural Law, however, the common good exists for the benefit of each individual, rather than the individual serving the common good as a fundamental part of the whole society.[33] Instead of appealing to shared intrinsic worth and the eternal law, New Natural law appeals to the value others can provide toward an individuals’ aims. This egoistic common good only extends as far as the aims and priorities of citizens are in harmony.
Following Aristotle and Aquinas, Finnis claims all men desire happiness, but if two sub-communities identify competing approaches to this happiness, they also identify more specific and competing common goods. A logging company might identify clearing a forest as essential to their approach to happiness as it benefits their basic goods, while Native American religious groups would identify the same practice as detrimental to their aims. While both groups share the common good of the larger state, it is unlikely either group would yield their personal convictions for the good of the other for the utility of their relationship. In Natural Law and Natural Rights, Finnis writes of students, who while competing for class rank, must remain civil in their lectures to retain their tutor’s focus.[34] The problem with such an analogy, is that the students’ present aims, learning law, are in harmony with each other because the tutor requires two students. If, however, the tutor required only one student, surely neither would yield their study time to the other. When one’s most basic good is diametrically opposed to another’s, compromise would require forsaking individual values for the sake of another. Without an appeal to the eternal law, such a compromise of one’s teleology is irrational.
For an individual to forsake their own values, there must be a trade-off greater than what one is sacrificing for others. The sale of my house is contingent on the attainment of greater, or at least equal, value through monetary compensation, freedom to move, another property, or any combination of goods that I deem worth the value of my house. Likewise, the compromise of my pursuit of happiness is contingent on attainment of goods which promote that pursuit in a different way. However, on Finnis’ account, there exist no goods worth sacrificing my deepest metaphysical convictions. Without faith that my governors are pursuing knowledge of the same eternal law as myself, I may have no reason to sacrifice personal goods for the common good. I have no assurance it even shares my conception of “good.” An absurd example is helpful here. If one considers polygamy a means to a personal telos, he can practice this while respecting Finnis’s seven basic goods. However, polygamy is illegal under human law. Under natural law, he ought to assume his governors have carefully considered the natural law when drafting these laws. However, his governors may simply have a different conception of flourishing Rarely, would one consider sacrificing goods essential to his happiness for the sake of his neighbor. Without appeal to a common teleology, or any tradition of interpreting natural law, there is no unifying approach to happiness to reconcile the polis. The same can apply to bestiality, homosexuality, or any pursuit of happiness not blatantly denying common sense; celibacy, however, may not be consistent with Finnis’s basic good of health, as it denies reproduction. Without metaphysical claims, natural law lacks the explanatory power required to demand citizens sacrifice their teleologies for the sake of the common good.
Finnis compares communities of common interest to traditional conceptions of communities of location.[35] Unlike these traditional conceptions of community, which prioritize harmony within one’s immediate geographic or social sphere, Finnis has no grounds for postponing one’s aims for one’s community; instead one’s community is determined by one’s aims. Consequently one’s allegiance must remain with his own pursuit of happiness. Thus, betraying one’s community of interest for the sake of the society’s common good would be analogous to betraying one’s town for sake of another two states away, an idea foreign to Aristotle and Aquinas both.[36] Since there are no grounds for the greater common good other than shared utility toward common ends, one must align themselves with the community whose interest best match his own.
Early articulations of pluralistic societies understood this. John Locke promoted his ideas of liberalism in the polis as it included protestant Europeans with common rights from a common source. As such, Locke forbid atheism, Islam, and Catholicism. He acknowledged the utility of a shared vision of the pursuit of happiness. Some, like Stephen Macedo have attempted similar projects without religion, and have instead prescribed entire moral frameworks in which to ground a society.[37] Finnis, however, has nothing to appeal to but rationality, and where rationalities differ, has no appeal but mutual benefit. This account of natural law, while inclusive, provides no reconciliation between coexisting conceptions of happiness.
Likewise, New Natural Law theories offer no reconciliation between competing basic goods. There is no way for a society to choose the good that makes its citizens most virtuous. One might prioritize life over all other goods and dedicate her life to medical science; another might prioritize play over other basic goods and dedicate his life to playing his Xbox. Both the doctor and the gamer may sacrifice other basic goods to attain their aims, both perhaps forsaking relationships for their vocation. While the doctor may require promoting the common good for her happiness, the gamer does not. He does not need a community of utility to achieve his aims, and without a metaphysical framework in which to ground his basic good, has no reason for pursuing anything other than his preferred basic good. Aquinas might appeal to the eternal law to urge a fuller understanding of human flourishing, but Finnis can only appeal to the common-sense pursuit of happiness. One has no obligation to his neighbor as long as he is happy.
One may retort that such descriptions of happiness which promote any basic good at the cost of another are insufficient; true happiness requires one to pursue all basic goods. This claim, however, returns to conceptions of happiness beyond the scope of Finnis’s observations. As already noted, Finnis has no account of human teleology, only of those goods which are common to all teleologies. Observing the universality of these goods does not mandate they all be pursued equally. New Natural Law only dictates that these goods are worth pursuing. It is no surprise that rational creatures then seek the goods they find either most important or those which seem to produce the most happiness with the least effort.
Because Finnis denies any most basic good he allows for fractures among citizens who promote one good over another. Such a unilateral order of goods equivocates the action of letting a friend die to save one’s life with letting a friend die to play Xbox games, providing either sacrifice does not hinder future capacities to pursue basic goods. There is no distinction between the goods, provided any attained good promotes further utility to pursue happiness.[38] The Universality of New Natural Law ultimately slides to egoism and allows for incompatible approaches to basic goods.
The Necessity of Metaphysical Commitments
Finnis’s account of natural law lacks a system of discerning the details and priorities of basic goods. Perhaps the best response to Finnis’s support of justice through rationality is Alasdair MacIntyre’s Whose Justice? Which Rationality?. MacIntyre acknowledges that varying metaphysical traditions share varying rationalities; while they share common basic goods, they differ on other issues.[39] The modern moral project has fractured because of its various conceptions not only of the ends of man, but also of rationality itself. Macintyre pinns a modern undermining of rationality through modern questioning the capacity of reason itself. Likewise, common accounts of human teleology have been challenged by the new sciences, which deny any essential account of human function.[40] Contrary to the medievals who shared conceptions of both the nature of man and the function of reason, modern thinkers have fractured into specific traditions. Where once Greeks, Scholastics, and Golden Age Islamists all inherited Aristotle’s metaphysics, moderns have each inherited and critiqued the systems of their predecessors, leading to a polis in which Aristotelian, Neo-Humean, Kantian, and Nietzschean traditions all compete to be the “true” rationality.[41]
MacIntyre’s notion of competing rationalities forces the collapse of the New Natural Law in pluralistic societies. Descartes challenges empirical reasoning, Kant critiques pure reason, and Calvin challenges the function itself suggesting man’s reasoning is too fallen for practical reasoning.[42] Without confidence in practical reasoning, New Natural Law must gamble that its account of reasoning leads to moral choices. But the practical of reason of a society is fallible and unjustifiable without appeal to metaphysical commitments. Moreover, in pluralistic societies, the majority may prescribe to Thomistic ethics, while a few follow the tradition of Nietzsche and Rand, manipulating the society for their own gain. At worst, this disfavors the majority who are taken advantage of in their pursuit of happiness, at worst the egotists and emotivists manipulate the polis for their own sake and usher a destruction of any true common good. For natural law to arise as a sustainable political system, a politic must share the same tradition.
For this reason, New Natural Theories are not only inconsistent with Thomas, but with themselves. It attempts to borrow a consistent conception of practical reason foundations which make reason is reliable. While Grisez intended his theory as one particular reading of Aquinas, he fails to acknowledge his climate is not the same as Thomas’s. If Aquinas had the freedom to preclude metaphysics, it is only because his society already shared them. There is a difference in claiming that one need not appeal to the eternal law, and claiming that the eternal law is irrelevant. In departing from metaphysical commitments, New Natural Law theorists unhinge themselves from the foundation of their reason. Because the New Natural Law removes the justification for its judgements, it is inconsistent with itself.
Future attempts at a modern conception of natural law must reconcile with the heterogeny of accounts of rationality. One such attempt may be to agree to theories of human teleology and rationality as brute facts for the sake of society. Another option, as proposed by MacIntyre may be to ground communities in shared ethical narratives.[43] Such an approach follows Finnis’s concept of communities as coordination of those with shared ends. Its shortcoming, however, will be the narrow scope of such communities. A Thomistic and Nietzschean community could hardly find a common good, and given the exponential growth of global connectivity, co-existence within a global community becomes increasingly difficult. This sort of conflict has arisen repeatedly throughout history whenever neighboring states find conflicting aims. However, because modern communities are grouped by ethical tradition, rather than geographic or relational proximity, they may increasingly lack the government support historically provided to neighboring states. One’s teleology now conflicts with her next-door neighbor’s, rather than with a citizen of a foreign state. Solutions to these tensions are beyond the scope of this paper, but have been attempted by political thinkers such as Augustine, John Locke, Karl Marx, and John Finnis, who suggests rationality may be sufficient to pursue common basic goods.
Thus, we are back where we started. I have attempted to show how traditional and new accounts of natural law differ. While Aquinas grounds rationality and human teleology in eternal law, Finnis identifies common goods universal to all pursuits of a happy life. In identifying basic goods, Finnis does not a find common teleology, merely corresponding values in these pursuits. Moreover, Finnis articulates no system of discerning hierarchies of basic goods or means to resolve conflict between competing teleologies. Most importantly, Finnis provides insufficient support for which rationality grounds the common good. As a result, while New Natural Law may work for individual and local moral reasoning, it encounters difficulties as the scope of society grows. For societies to share a common good, they must share claims as to the nature of a human’s end and rationality, which modern philosophies have dismantled. Moving forward, it is likely smaller communities of shared commitments will intensify, but it is impossible to predict how these communities will overcome the inevitable conflicts their unavoidable engagement will bring. Thus far it seems impossible, however, that such reconciliation can arise through practical reason devoid of metaphysical commitments.
[1] See Grisez, Germain. The First Principal of Practical Reason: A Commentary on the Summa Theologiae, I-II. Q. 94, A. 2. 1065 [2] Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 1, [3] Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 2, [4] Ibid [5] Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 3, [6] Thomas Aquinas, Summa Theologica, I-II, q. 91, a. 1, [7] Thomas Aquinas, Summa Theologica, I-II, q. 96, a. 4, [8] Thomas Aquinas, Summa Theologica, I-II, q. 91, a. 2, [9] Thomas Aquinas, Summa Theologica, I-II, q. 93, a. 1, [10] Thomas Aquinas, Summa Theologica, I-II, q. 91, a. 2, [11] Ibid [12] Thomas Aquinas, Summa Theologica, I-II, q. 94, a. 4, [13] Thomas Aquinas, Summa Theologica, I-II, q. 94, a. 3, [14] Thomas Aquinas, Summa Theologica, I-II, q. 93, a. 6, [15] Thomas Aquinas, Summa Theologica, I-II, q. 92, a. 3, [16] Ibid [17] Thomas Aquinas, Summa Theologica, I-II, q. 93, a. 1, [18] Thomas Aquinas, Summa Theologica, I-II, q. 93, a. 2, [19] Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 2, [20] Thomas Aquinas, Summa Theologica, I-II, q. 94, a. 4, [21] Ibid [22] Thomas Aquinas, Summa Theologica, I-II, q. 95, a. 1, [23] Finnis, John. Natural Law and Natural Rights. 153 [24] Finnis, John. Natural Law and Natural Rights. 153 [25] Finnis, John. Natural Law and Natural Rights. 147 [26] Finnis, John. Natural Law and Natural Rights. 149 [27] Finnis, John. Natural Law and Natural Rights. 155 [28] Finnis, John. Natural Law and Natural Rights. 136 [29] Though some have argued Finnis extends these rights beyond their immediately recognizable limits, for instance, extending life to include heath healthcare. See Jean Porter A Thomistic Theory of Natural Law. Eerdmans 2005. 36. [30] Finnis, John. Natural Law and Natural Rights. 156 [31] See Rawls, John, Political Liberalism. Columbia University Press. 1993, Ch. 2 [32] Finnis, John. Natural Law and Natural Rights. 89 [33] Finnis, John. Natural Law and Natural Rights. 141. [34] Finnis, John. Natural Law and Natural Rights. 139 [35] Finnis, John. Natural Law and Natural Rights. 135 [36] Thomas Aquinas, Summa Theologica, I-II, q.95 a.4 [37] See Locke, John, A Letter Concerning Toleration, Hackett Publishing 1983; Macedo, Stephen, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism. Oxford University Press. 1990. [38] Finnis, John. Natural Law and Natural Rights. 156 [39] MacIntyre, Alasdair. Whoose Justice? Which Rationality?, Notre Dame Press, 1988, 350. [40] MacIntyre, Alasdair. After Virtue, Notre Dame Press. 2012, 53-55 [41] Ibid [42] Ibid [43] MacIntyre, Alasdair., Whose Justice? Which Rationality?110
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