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On Natural Law and Justice

In his work Introduction to Moral Theology, Fr. Romanus Cessario O.P. remarked on certain misconceptions with respect to how the natural had grown in application and importance over time in the late 19th and early 20th centuries: arguing that the presentation of the natural law given in teaching manuals was anachronistic and unhelpful, and in extreme cases was at times influenced by Suarezian or casuist trends in moral theology.

The casuistry embedded in the Roman Catholic manual tradition greatly contributed to misinterpretations of natural law. Although Prummer follows Aquinas’ own material distinctions, this sort of presentation nonetheless reinforces the misconception that Catholic moral theology is given to consider every specific moral issue as if natural law alone supplied the ultimate determination. The manualist misconstrues of natural law also explain the tendency among some contemporary authors to think that natural law theory supplies the equivalent of a complete moral theory… Natural law is not the only resource needed for a complete theory of Christian morality. A realist moral theologian recognizes that natural law provides a starting point for discovering the concrete forms of moral goodness.[1]

Romanus Cessario, Introduction to Moral Theology

Natural Law and Justice

If a scholar of Aquinas were to look at what the Angelic Doctor wrote on the natural law in the Summa Theologiae, they would be surprised to find very little actually discussed by St. Thomas. Fewer than twenty questions in the Prima Secundæ are devoted to questions specifically concerning law and only one of them to the natural law. By contrast, what Aquinas had to say on the virtues, more specifically the virtue of justice, greatly eclipses what he wrote on law.  Questions 57-122 are all devoted to discussing the importance and concrete application of justice, and the entirety of the Secunda Secundæ discusses the virtues in general.

Aquinas, in discussing the natural law, outlines the precepts of the law in the Summa, arguing that the precepts of natural law are roughly equivalent to first principles in speculative sciences and demonstration. They provide us the starting point, as it were, for praxis and practical reasoning:

[T]he precepts of the natural law are to the practical reason, what the first principles of demonstrations are to the speculative reason; because both are self-evident principles… Since, however, good has the nature of an end, and evil, the nature of a contrary, hence it is that all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Wherefore according to the order of natural inclinations, is the order of the precepts of the natural law. Because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law, “which nature has taught to all animals” [Pandect. Just. I, tit. i], such as sexual intercourse, education of offspring and so forth. Thirdly, there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus, man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.[2]

In Summa Theologiae Ia-IIae qu. 94 art. 1

A problem one might face with Aquinas’ theory is that the natural law, or more specifically its precepts, do not determine their own application. A sentiment as universal as “striving towards living in a society and avoiding offense against those with whom one has to live” might be admirable, but it can hardly help determine for us the day-to-day demands of justice—especially living in an increasingly technocratic and hyper-communicative world. These principles may indeed be what ought to form the basis of our practical reasoning, but they are not principles which determine their own application. Aquinas is aware that this is the case, and in discussing justice as it pertains to the virtue of epieikeia (reasonable accommodation of circumstances in pursuit of equity), writes how justice is that with which laws are concerned, and principally deal.

When we were treating of laws, since human actions, with which laws are concerned, are composed of contingent singulars and are innumerable in their diversity, it was not possible to lay down rules of law that would apply to every single case. Legislators in framing laws attend to what commonly happens: although if the law be applied to certain cases, it will frustrate the equality of justice and be injurious to the common good, which the law has in view.[3]

In Summa Theologiae IIa-IIae qu. 120 art. 1

Relationality of Justice

Interestingly enough, Aquinas, in treating the virtue of justice, notes how it is more principally the virtue pertaining to the virtuous person as it especially stands in importance among the different virtues. Speaking of the subjective qualities of the soul, it simply is better on account of its residing in reason, but also because it is precisely through justice that we can be good towards other people, rather than being good in ourselves.

If we speak of legal justice, it is evident that it stands foremost among all the moral virtues, for as much as the common good transcends the individual good of one person. On this sense the Philosopher declares (Ethic. v, 1) that “the most excellent of the virtues would seem to be justice, and more glorious than either the evening or the morning star.” But, even if we speak of particular justice, it excels the other moral virtues for two reasons. The first reason may be taken from the subject, because justice is in the more excellent part of the soul, viz. the rational appetite or will, whereas the other moral virtues are in the sensitive appetite, whereunto appertain the passions which are the matter of the other moral virtues. The second reason is taken from the object, because the other virtues are commendable in respect of the sole good of the virtuous person himself, whereas justice is praiseworthy in respect of the virtuous person being well disposed towards another, so that justice is somewhat the good of another person, as stated in Ethic. v, 1. Hence the Philosopher says (Rhet. i, 9): “The greatest virtues must needs be those which are most profitable to other persons, because virtue is a faculty of doing good to others. For this reason, the greatest honors are accorded the brave and the just, since bravery is useful to others in warfare, and justice is useful to others both in warfare and in time of peace.”[4]

In Summa Theologiae IIa-IIae qu. 58 art. 12

Justice then seems to be just as important—if not even more so—than the precepts of the natural law, because it is only through justice that right relations between different members of a given society can obtain. Not only relations with family members, or friends, but lawgivers, employers, statesmen, and the like all require the application of justice.

Understanding Justice in our Contemporary Context

Putting aside justice as conventionally understood by Aquinas in his 13th century medieval context, what would he have to say with regards to the application of social media and communication-based technology that we have encountered and utilized in the 21st century? Is justice something that concerns us insofar as we employ social media? Do we have some sort of obligation towards justice in how we interact with each other socially online? My question then for us all for Wednesday is; what is the relationship between the natural law, or more specifically the precepts of the natural law and the virtue of justice, and what does it mean then to be justice today given the widespread use of social media and technology?

Philosophical Happy Hour

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Come join us for drinks (adult or otherwise) and a meaningful conversation. Open to the public! Held every Wednesday from 5:45–7:15pm ET.


[1] Cessario, R. (2001). Introduction to Moral Theology. : Catholic University of America Press. Pg. 104

[2] In Summa Theologiae Ia-IIae qu. 94 art. 1 Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, Online Edition Copyright © 2017 by Kevin Knight https://www.newadvent.org/summa/2094.htm#article1

[3] In Summa Theologiae IIa-IIae qu. 120 art. 1 https://www.newadvent.org/summa/3120.htm

[4] In Summa Theologiae IIa-IIae qu. 58 art. 12  https://www.newadvent.org/summa/3058.htm#article12

Philosophy’s relation to Natural and Positive Law

Can we understand the law in a non-philosophical manner? Can the jurist afford to disdain questions of philosophy? We must have consensus in certain disciplines, and the positive law is one of them—but what grounds this consensus? Must we have a philosophical theory of the natural law? Can law truly be itself without a relation to philosophical analyses?

From Yves Simon’s Tradition of Natural Law, p.63-66:

Let us recognize that the question of natural law is itself philosophical. Further, it is related in the most inescapable way to profound issues of theoretical philosophy. Thus, the difficulties proper to philosophy are inescapably present in any discussion involving natural law. From this it follows that whenever there is a good reason to avoid these difficulties, there will also be a good reason to leave natural law out of the picture, whether by denying that it exists or by acting as if its existence did not matter.

In the present connection, the difficulties “proper to philosophy” pertain principally or mostly to the problem of communication, community in assent, consensus. Let the fundamentals of this issue be briefly stated. Wherever there is demonstration there is an absolutely firm ground for unanimous assent. An axiomatic propositions is necessarily assented to by any mind that understands it, and a demonstrated proposition necessitates the assent of any mind that considers it under the power of the demonstrating premises. But in this world of contingent occurrences there is an indeterminate discrepancy between the really normal and the factual, between that which would happen if essential necessities had their own way and what happens factually.* The popular belief—shared by a great variety of philosophical thinkers—that a genuinely demonstrated proposition necessarily entails factual consensus, and that failure to cause consensus is perfect evidence of failure to attain demonstrativeness, ignores the unpleasant fact that contingency affects intellectual life as certainly as it does the growth of plants in our forests and in our cultivated fields. There are departments of knowledge where demonstration, no matter how flawless, is unlikely to entail factual agreement except within small circles of kindred minds. Such is the case with all philosophic sciences, and if a man feels that he has no calling for solitary research, solitary contemplation, and solitary struggle against error, he should conclude that he has no calling for philosophy. But there are disciplines which by reason of their social function, and also by reason of the conditions to which their existence and their development are subjected, systematically seek factual communicability and the largest possible amount of agreement. Such is the case of all techniques (e.g., engineering, medicine) and of all the sciences insofar as they are directly or indirectly, proximately or remotely, dominated by technical purposes. Considering, further, that scientific research in our society is to an unprecedented extent the work of teams, it becomes clear that the successful communication of propositions is not only a condition of technical fertility: it is also a condition of progress and existence of such disciplines.

Another domain where factual agreement is sought systematically is that of positive law. There si no need to elaborate on this point: by the very fact that formulas of positive law are designed to hold men together, organize their cooperation, bring about uniformity in the behavior of indefinitely many individuals, it is highly desirable that these formulas should command the assent of all persons concerned or most of them. We must, accordingly, expect the jurists to evidence an eagerness to keep away from issues on which minds are irretrievably divided. In this respect there is a striking analogy between the case of the jurist and that of the natural scientist. Duhem, among others, said that if physics claimed to be an explanation of nature, it would soon become as controversial as metaphysics. Why should that be avoided? Again, because of the function that physics has to play in society and because of the social conditions of its existence and development. All natural scientists, no matter how divided they may be on the philosophical interpretation of their own science, would agree that the search for factual consensus plays a considerable role in their choice of questions and in the determination of their standpoints and their ways of research and expression. Thus the merits of consensus prompt the scientists to abstract from many aspects of reality which, indeed, may well be worth considering, which perhaps should be considered by somebody—e.g., by philosophers—but which have to be left out of the picture by men who absolutely need to understand each other in order to be able to work together. The sane need for abstraction is felt in positive law. The ideal of the positive jurist, especially in societies deeply divided on philosophical, moral, social, and religious subjects, is a system of legal formulas which would be equally acceptable to the nominalist and the realist, the mechanist and the hylomorphist, the believer in universal necessity and the believer in the reality of contingency, the upholder and the denier of free choice, the rationalist and the voluntarist, the theist and the atheist. Is such a system possible at all? The least that can be said is that it would be low in intelligibility and would defeat a major purpose of the jurist, which is to explain the law. Jurists are caught in an antinomy: inasmuch as they are concerned with explanation they are inclined toward philosophical analysis, and they move away from desirable consensus; but inasmuch as they systematically seek consensus they are bound to abstract from the really illuminating issues which are philosophic and on which, as a matter of fact (though not by essential necessity), minds will always be divided. Legal positivism is considered by many a valuable compromise. But it is just another philosophy, and its being describable as the philosophy of the nonphilosophers does not give it power to win consensus. Yet the legal positivist may at least cherish the illusion that he is satisfying the conditions of unanimous assent; the theorist of natural law cannot cherish such an illusion. Accordingly, jurists generally favor some sort of positivism. The case had been different in the past, prior to the constitution of positivism as a distinct system of philosophy. But when the theory of natural law seems to be commonly accepted and works as a factor of agreement, there are good reasons to suspect that it is embodied in an ideology. Then the weight which brings about consensus is not that of objectivity; it is rather a sociological weight which is at best an embarrassing ally of truth. The conflict between the requirements of philosophic analysis and those of consensus may cause difficulties in the work of the philosophers; it inevitably causes trouble in the treatment of such a subject as natural law by jurists, for they, indeed, have strong reasons to seek consensus. And we cannot doubt that such problems will last as long as there remains any philosophic interest in nature and in law.

*Assent to an axiomatic proposition is necessary as soon as this proposition is understood. Whether it is easy or not to understand axiomatic propositions is a totally different issue. The notion of logical immediacy, which means nothing else than the connection of a subject and a predicate without the offices of any intermediary term, must not be confused with the psychological disposition commonly expressed by the exclamations “That is obvious!”

If you are interested in these and like questions and texts, and wish to think deeply about the natural law, sign up for Dr. Matthew Minerd’s seminar—starting in July 2023!

Seminar Catalog for 2023

The year 2022 saw the Lyceum offer a spate of diverse and fascinating seminars. so how can we top this wonderful past year of seminars? Why, with a new year of wonderful seminars, of course! We are covering a broad range of thinkers and ideas this year: Aristotle, Aquinas, John Henry Newman, John Poinsot, Yves Simon, Edmund Husserl, Edith Stein, Martin Heidegger, Eugen Rosenstock-Huessy—and more. Introducing our seminar catalog for 2023:

2023 Seminar Catalog

W I N T E R (JANUARY—APRIL)Instructors
» Ethics: Virtue» Dr. Brian Kemple
» Aquinas’ Cosmological Vision» Dr. Brian Kemple
S P R I N G (APRIL—JUNE)
» Quaestiones disputatae de Veritate – Part I» Dr. Kirk Kanzelberger
» John Henry Newman in Four Books» Dr. Scott Randall Paine
» Semiotics: The Tractatus de Signis of John Poinsot» Dr. Brian Kemple
S U M M E R (JUNE—SEPTEMBER)
» Phenomenology: an Introduction» Drs. Daniel Wagner and Brian Kemple
» Politics: A Thomistic Defense of Democracy» Dr. Francisco Plaza
» Ethics: The Moral Noetic of the Natural Law» Dr. Matthew Minerd
» Quaestiones disputatae de Veritate – Part II» Dr. Kirk Kanzelberger
F A L L (SEPTEMBER—NOVEMBER)
» Thomistic Psychology: Habits and World» Dr. Brian Kemple
» Phenomenology: The Contribution of Eugen Rosenstock-Huessy» Dr. Scott Randall Paine
» Phenomenology: Heidegger’s Method – Part I» Dr. Brian Kemple

These seminars are open to the public, but enrolled members of the Lyceum Institute are offered discounted fees. Each lasts 8 weeks and includes the opportunity for an in-depth engagement with important philosophical questions. Anyone with a serious commitment to the truth is welcome. Our instructors are among the very best and bring decades of insight, wisdom, and experience in teaching. Download the Seminar Catalog for full descriptions of each seminar.

Details (dates, times, syllabi, required books, and in-depth descriptions) and registration for each seminar will be posted approximately one month before they begin. Keep your eyes here for news about Ethics: Virtue and Aquinas’ Cosmological Vision this weekend—and consider enrolling!

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