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Natural Law and Natural Rights

I
n 1776, Thomas Jefferson wrote in the Decla- of 2007, many of the 500 or so detainees had been
ration of Independence, “We hold these truths to sent back to the countries of their origins. Some
be self-evident, that all men are created equal, were finally allowed lawyers, although not of their
that they are endowed by their Creator with certain own choice. U.S. courts had ruled that the detainees
inalienable rights, that among these are life, liberty must be given trials, not in the United States, but in
and the pursuit of happiness.”1 Jefferson had read U.S. military courts. As of this time, more prisoners
the work of English philosopher John Locke, who are scheduled for release and some 250 may be
had written in his Second Treatise on Government held indefinitely.3 (Also see the discussion of
that all human beings were of the same species, torture in Chapter 4.) What is meant by “human
born with the same basic capacities.2 Thus, Locke rights”—and does every person possess such
argued, because all humans had the same basic rights? This is one of the questions addressed in this
nature, they should be treated equally. chapter.
Following the 2001 terrorist attack on the World The Nuremberg trials were trials of Nazi war
Trade Center and the Pentagon, and with the U.S. criminals held in Nuremberg, Germany, from 1945
invasion of Afghanistan, the question arose about to 1949. There were thirteen trials in all. In the first
what to do with people captured by the United trial, Nazi leaders were found guilty of violating
States and considered to be terrorists. Since 2004, international law by starting an aggressive war.
they have been transferred to Guantanamo Bay in Nine of them, including Hermann Goering and
Cuba, a U.S. naval base on the southeastern side Rudolf Hess, were sentenced to death. In other
of the island (the United States still held a lease to trials, defendants were accused of committing
this land because of the 1903 Cuban-American atrocities against civilians. Nazi doctors who had
Treaty). A prison was set up, and those who were conducted medical experiments on those impris-
thought to be members, supporters, or sympathiz- oned in the death camps were among those tried.
ers of al Qaeda or the Taliban were transferred Their experiments maimed and killed many
there. It was said that they were not part of any people, all of whom were unwilling subjects. For
army of any state and thus not prisoners of war example, experiments for the German air force
but “enemy combatants” and thus not covered by were conducted to determine how fast people
any of the protections of the Geneva Conventions. would die in very thin air. Other experiments tested
They also were not given the protections of U.S. the effects of freezing water on the human body.
laws, and they were denied such basic human The defense contended that the military personnel,
rights as knowing the charges against them and judges, and doctors were only following orders.
being allowed to defend themselves in court. As However, the prosecution argued successfully that

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even if the experimentation did not violate the nature as human beings to see what is essential
defendants’ own laws, they were still “crimes for us to function well as members of our species.
against humanity.” The idea was that a law more We look to certain aspects of our nature to know
basic than civil laws exists—a moral law—and what is our good and what we ought to do.
these doctors and others should have known what Civil law is also prescriptive. As the moral law,
this basic moral law required. however, natural law is supposed to be more basic
The idea that the basic moral law can be known or higher than the laws of any particular society.
by human reason and that we know what it Although laws of particular societies vary and
requires by looking to human nature are two of the change over time, the natural law is supposed to be
tenets of natural law theory. Some treatments of universal and stable. In an ancient Greek tragedy
human rights also use human nature as a basis. by Sophocles, the protagonist Antigone disobeys
According to this view, human rights are those the king and buries her brother. She did so because
things that we can validly claim because they are she believed that she must follow a higher law that
essential for functioning well as human beings. required her to do this. In the story, she lost her life
This chapter will present the essential elements of for obeying this law. In the Nuremberg trials, prose-
both of these theories. cutors had also argued that there was a higher law
that all humans should recognize—one that takes
NATURAL LAW THEORY precedence over state laws. People today some-
One of the first questions to ask concerns the kind times appeal to this moral law in order to argue
of law that natural law is. After addressing this which civil laws ought to be instituted or changed.4
question, we will examine the origins of this theory.
Then we will explain what the theory holds. Finally, HISTORICAL ORIGINS: ARISTOTLE
we will suggest things to think about when evalu- The tradition of natural law ethics is a long one.
ating the theory. Although one may find examples of the view that
certain actions are right or wrong because they
What Kind of Law Is Natural Law? are suited to or go against human nature before
Let us consider first, then, what type of law that nat- Aristotle wrote about them, he is the first to develop
ural law is. The natural law, as this term is used in a complex ethical philosophy based on this view.
discussions of natural law theory, should not be Aristotle was born in 384 B.C. in Stagira in north-
confused with those other “laws of nature” that are ern Greece. His father was a physician for King Philip
the generalizations of natural science. The laws of of Macedonia. Around age seventeen, he went to
natural science are descriptive laws. They tell us study at Plato’s Academy in Athens. Historians of
how scientists believe nature behaves. Gases, for philosophy have traced the influence of Plato’s phi-
example, expand with their containers and when losophy on Aristotle, but they have also noted sig-
heat is applied. Boyle’s law about the behavior of nificant differences between the two philosophers.
gases does not tell gases how they ought to behave. Putting one difference somewhat simply, Plato’s phi-
In fact, if gases were found to behave differently losophy stresses the reality of the general and
from what we had so far observed, then the laws abstract, this reality being his famous forms or ideas
would be changed to match this new information. that exist apart from the things that imitate them or
Simply put, scientific laws are descriptive general- in which they participate. Aristotle was more inter-
izations of fact. ested in the individual and the concrete manifesta-
Moral laws, on the other hand, are prescriptive tions of the forms. After Plato’s death, Aristotle trav-
laws. They tell us how we ought to behave. The nat- eled for several years and then for two or three
ural law is the moral law written into nature itself. years was the tutor to Alexander, the young son of
What we ought to do, according to this theory, is King Philip, who later became known as Alexander
determined by considering certain aspects of the Great. In 335 B.C., Aristotle returned to Athens
nature. In particular, we ought to examine our and organized his own school called the Lyceum.
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There he taught and wrote almost until his death also can know what a good squirrel is. A good
thirteen years later in 322 B.C.5 Aristotle is known specimen of a squirrel is one that is effective, suc-
not only for his moral theory but also for writings in cessful, and functions well. It follows the pattern of
logic, biology, physics, metaphysics, art, and poli- development and growth it has by nature. It does,
tics. The basic notions of his moral theory can be in fact, have a bushy tail and good balance, and it
found in his Nicomachean Ethics, named for his son knows how to find and store its food. It would be a
Nicomachus.6 bad example of a squirrel or a poor one that had no
balance, couldn’t find its food, or had no fur and was
Nature, Human Nature, and the sickly. It would have been better for the squirrel if
Human Good its inherent natural tendencies to grow and develop
Aristotle was a close observer of nature. In fact, in and live as a healthy squirrel had been realized.
his writings he mentions some 500 different kinds According to the natural law tradition from
of animals.7 He noticed that seeds of the same sort Aristotle on, human beings are also thought to be
always grew to the same mature form. He opened natural beings with a specific human nature. They
developing eggs of various species and noticed have certain specific characteristics and abilities
that these organisms manifested a pattern in their that they share as humans. Unlike squirrels and
development even before birth. Tadpoles, he might acorns, human beings can choose to do what is
have said, always follow the same path and their good or act against it. Just what is their good?
become frogs, not turtles. So also with other living Aristotle recognized that a good eye is a healthy eye
things. Acorns always become oak trees, not elms. that sees well. A good horse is a well-functioning
He concluded that there was an order in nature. It horse, one that is healthy and able to run and do
was as if natural beings such as plants and animals what horses do. What about human beings? Was
had a principle of order within them that directed there something comparable for the human being
them toward their goal—their mature final form. as human? Was there some good for humans as
This view can be called a teleological view from the humans?
Greek word for goal, telos, because of its emphasis Just as we can tell what the good squirrel is
on a goal embedded in natural things. It was from from its own characteristics and abilities as a
this that Aristotle developed his notion of the good. squirrel, according to natural law theory, the same
According to Aristotle, “the good is that at which should be true for the human being. For human
all things aim.”8 We are to look at the purpose or beings to function well or flourish, they should
end or goal of some activity or being to see what is perfect their human capacities. If they do this, they
its good. Thus, the good of the shipbuilder is to will be functioning well as human beings. They
build ships. The good of the lyre player is to play will also be happy, for a being is happy to the
well. Aristotle asks whether there is anything that extent that it is functioning well. Aristotle believed
is the good of the human being—not as shipbuilder that the ultimate good of humans is happiness,
or lyre player, but simply as human. To answer this blessedness, or prosperity: eudaimonia. But in
question, we must first think about what it is to be what does happiness consist? To know what hap-
human. According to Aristotle, natural beings come piness is, we need to know what is the function of
in kinds or species. From their species flow their the human being.
essential characteristics and certain key tendencies Human beings have much in common with
or capacities. A squirrel, for example, is a kind of lower forms of beings. We are living, for example,
animal that is, first of all, a living being, an animal. just as plants are. Thus, we take in material from
It develops from a young form to a mature form. It outside us for nourishment, and we grow from an
is a mammal and has other characteristics of mam- immature to a mature form. We have senses of
mals. It is bushy-tailed, can run along telephone sight and hearing and so forth as do the higher
wires, and gathers and stores nuts for its food. animals. But is there anything unique to humans?
From the characteristics that define a squirrel, we Aristotle believed that it was our “rational element”
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100 PART ONE ■ ETHICAL THEORY

that was peculiar to us. The good for humans, us from fulfilling our innate natural drive or orienta-
then, should consist in their functioning in a way tion to know the way things are.10 Moreover, what-
consistent with and guided by this rational ele- ever enhances our ability to choose freely is good.
ment. Our rational element has two different func- A certain amount of self-discipline, options from
tions: One is to know, and the other is to guide which to choose, and reflection on what we ought
choice and action. We must develop our ability to to choose are among the things that enhance free-
know the world and the truth. We must also dom. To coerce people and to limit their possibili-
choose wisely. In doing this, we will be functioning ties of choosing freely are examples of what is
well specifically as humans. Yet what is it to choose inherently bad or wrong. We also ought to find ways
wisely? In partial answer to this, Aristotle develops to live well together, for this is a theory according to
ideas about prudential choice and suggests that we which “no man—or woman—is an island.” We are
choose as a prudent person would choose. social creatures by nature. Thus, the essence of nat-
One of the most well known interpreters of ural law theory is that we ought to further the inher-
Aristotle’s philosophy was Thomas Aquinas ent ends of human nature and not do what frus-
(1224–1274). Aquinas was a Dominican friar who trates human fulfillment or flourishing.
taught at the University of Paris. He was also a the-
ologian who held that the natural law was part of Evaluating Natural Law Theory
the divine law or plan for the universe. The record Natural law theory has many appealing characteris-
of much of what he taught can be found in his tics. Among them are its belief in the objectivity of
work the Summa Theologica.9 Following Aristotle, moral values and the notion of the good as human
Aquinas held that the moral good consists in follow- flourishing. Various criticisms of the theory have
ing the innate tendencies of our nature. We are by also been advanced, including the following two.
nature biological beings. Because we tend by nature First, according to natural law theory, we are to
to grow and mature, we ought to preserve our being determine what we ought to do from deciphering
and our health by avoiding undue risks and doing the moral law as it is written into nature—specifi-
what will make us healthy. Furthermore, like sen- cally, human nature. One problem that natural law
tient animals, we can know our world through theory must address concerns our ability to read
physical sense capacities. We ought to use our nature. The moral law is supposedly knowable by
senses of touch, taste, hearing, and sight; we ought natural human reason. However, throughout the
to develop and make use of these senses for appre- history of philosophy various thinkers have read
ciating those aspects of existence that they reveal nature differently. Even Aristotle, for example,
to us. We ought not to do, or do deliberately, what thought that slavery could be justified in that it was
injures these senses. Like many animals we repro- in accord with nature.11 Today people argue
duce our kind not asexually but sexually and het- against slavery on just such natural law grounds.
erosexually. This is what nature means for us to do, Philosopher Thomas Hobbes defended the abso-
according to this version of natural law theory. (See lutist rule of despots and John Locke criticized it,
further discussion of this issue in Chapter 10 on both doing so on natural law grounds. Moreover,
sexual morality.) traditional natural law theory has picked out highly
Unique to persons are the specific capacities of positive traits: the desire to know the truth, to
knowing and choosing freely. Thus, we ought to choose the good, and to develop as healthy mature
treat ourselves and others as beings capable of beings. Not all views of the essential characteristics
understanding and free choice. Those things that of human nature have been so positive, however.
help us pursue the truth, such as education and Some philosophers have depicted human nature
freedom of public expression, are good. Those as deceitful, evil, and uncontrolled. This is why
things that hinder pursuit of the truth are bad. Deceit Hobbes argued that we need a strong government.
and lack of access to the sources of knowledge are Without it, he wrote, life in a state of nature would
morally objectionable simply because they prevent be “nasty, brutish, and short.”12
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Moreover, if nature is taken in the broader toward which the universe was in some way
sense—meaning all of nature—and if a natural law directed. According to Aristotle, there is an order
as a moral law were based on this, then the general in nature, but it did not come from the mind of God.
approach might even cover such theories as Social For Augustine and Thomas Aquinas, however, the
Darwinism. This view holds that because the most reason why nature had the order that it did was
fit organisms in nature are the ones that survive, so because God, so to speak, had put it there. Because
also the most fit should endure in human society the universe was created after a divine plan, nature
and the weaker ought to perish. When combined not only was intelligible but also existed for a pur-
with a belief in capitalism, this led to notions such pose that was built into it. Some natural law theo-
as that it was only right and according to nature that rists follow Thomas Aquinas on this, whereas
wealthy industrialists at the end of the nineteenth others either follow Aristotle or abstain from judg-
century were rich and powerful. It also implied that ments about the source of the order (telos) in
the poor were so by the designs of nature and we nature. But can we conceive of an order in nature
ought not interfere with this situation. without an orderer? This depends on what we
A second question raised for natural law theory mean by order in nature. If it is taken in the sense
is the following. Can the way things are by nature of a plan, then this implies that it has an author.
provide the basis for knowing how they ought to However, natural beings may simply develop in
be? On the face of it, this may not seem right. Just certain ways as if they were directed there by some
because something exists in a certain way does not plan—but there is no plan. This may just be our
necessarily mean that it is good. Floods, famine, way of reading or speaking about nature.14
and disease all exist, but that does not make them Evolutionary theory also may present a challenge
good. According to David Hume, as noted in our to natural law theory. If the way that things have
discussion of Mill’s proof of the principle of utility come to be is the result of many chance variations,
in Chapter 4, you cannot derive an “ought” from an then how can this resulting form be other than arbi-
“is.”13 Evaluations cannot simply be derived from trary? Theists often interpret evolution itself as part
factual matters. Other moral philosophers have of a divine plan. There is no necessary conflict
agreed. When we know something to be a fact, that between belief in God and evolution. Chance, then,
things exist in a certain way, it still remains an open would not mean without direction. Even a nonthe-
question whether it is good. However, the natural ist such as mid–nineteenth century American phi-
law assumes that nature is teleological, that it has losopher Chauncey Wright had an explanation of
a certain directedness. In Aristotle’s terms, it moves Darwin’s assertion that chance evolutionary varia-
toward its natural goal, its final purpose. Yet from tions accounted for the fact that some species were
the time of the scientific revolution of the seven- better suited to survive than others. Wright said that
teenth century, such final purposes have become “chance” did not mean “uncaused”; it meant only
suspect. One could not always observe nature’s that the causes were unknown to us.15
directedness, and it came to be associated with the
notion of nonobservable spirits directing things Natural Rights
from within. If natural law theory does depend on A second theory according to which moral require-
there being purposes in nature, it must be able to ments may be grounded in human nature is the
explain how this can be so. theory of natural rights. John Locke provided a good
Consider one possible explanation of the source example that Jefferson used in the Declaration of
of whatever purposes there might be in nature. Independence, as noted at the beginning of this
Christian philosophers from Augustine on believed chapter. Certain things are essential for us if we are
that nature manifested God’s plan for the universe. to function well as persons. Among these are life
For Aristotle, however, the universe was eternal; it itself and then also liberty and the ability to pursue
always existed and was not created by God. His those things that bring happiness. These are said to
concept of God was that of a most perfect being be rights not because they are granted by some
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state but because of the fact that they are important 1948 U.N. Declaration of Human Rights, the list of
for us as human beings or persons. They are thus rights includes welfare rights and rights to food,
moral rights first, though they may also need the clothing, shelter, and basic security. Just what
enforcement power of the law. kinds of things can we validly claim as human
There is a long tradition of natural rights in rights? Freedom of speech? Freedom of assembly?
Western philosophy. For example, we find a variant Housing? Clean air? Friends? Work? Income? Many
of the natural rights tradition in the writings of the of these are listed in various documents that
first- and second-century A.D. Stoics. Their key nations have signed that provide lists of human
moral principle was to “follow nature.” For them, rights. However, more is needed than lists. A ratio-
this meant that we should follow reason rather nale for what is to be included in those lists of
than human emotion. They also believed that there human rights is called for. This is also something
were laws to which all people were subject no that a natural rights theory should provide. Some
matter what their local customs or conventions. contemporary philosophers argue that the basic
Early Roman jurists believed that a common ele- rights that society ought to protect are not welfare
ment existed in the codes of various peoples: a jus rights such as rights to food, clothing, and shelter,
gentium. For example, the jurist Grotius held that but liberty rights such as the right not to be inter-
the moral law was determined by right reason. fered with in our daily lives.19 (See further discus-
These views can be considered variations on nat- sion of negative and positive rights in Chapter 13,
ural law theory because of their reliance on human the section on socialism.) How are such differences
nature and human reason to ground a basic moral to be settled? Moreover, women historically have
law that is common to all peoples.16 not been given equal rights with men. In the United
Throughout the eighteenth century, political phi- States, for example, they were not all granted the
losophers often referred to the laws of nature in dis- right to vote until 1920 on grounds that they were
cussions of natural rights. For example, Voltaire by nature not fully rational or that they were closer
wrote that morality had a universal source. It was in nature to animals than males! The women of
the “natural law . . . which nature teaches all Kuwait only gained the right to vote in 2005. How
men” what we should do. 17 The Declaration of is it possible that there could be such different
Independence was influenced by the writings of views of what are our rights if morality is supposed
jurists and philosophers who believed that a moral to be knowable by natural human reason?
law was built into nature. Thus, in the first section A second challenge for a natural rights theory
it asserts that the colonists were called on “to concerns what it must prove to justify its holdings.
assume among the powers of the earth, the sepa- First, it must show that human nature as it is ought
rate and equal station, to which the laws of nature to be furthered and that certain things ought to be
and of nature’s God entitle them.”18 granted to us in order to further our nature. These
Today various international codes of human things we then speak of as rights. Basic to this
rights, such as the United Nations’ Declaration of demonstration would be to show why human
Human Rights and the Geneva Convention’s princi- beings are so valuable that what is essential for
ples for the conduct of war, contain elements of a their full function can be claimed as a right. For
natural rights tradition. These attempt to specify example, do human beings have a value higher
rights that all people have simply as a virtue of their than other beings and, if so, why? Is a reference to
being human beings, regardless of their country of something beyond this world—a creator God, for
origin, race, or religion. example—necessary to give value to humans or is
there something about their nature itself that is the
Evaluating Natural Rights Theory reason why they have such a high value? Second,
One problem for a natural rights theory is that not a natural rights theorist has the job of detailing just
everyone agrees on what human nature requires what things are essential for the good functioning
or which human natural rights are central. In the of human nature.
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Chapter 6 ■ Natural Law and Natural Rights 103

Finally, not all discussions of human rights have resign his conscience to the legislator? Why has
been of the sort described here. For example, every man a conscience, then? I think that we
Norman Daniels claims that the reason why people should be men first, and subjects afterward. It is
have a right to basic health care is because of the not desirable to cultivate a respect for the law, so
much as for the right.” Henry David Thoreau,
demands of justice; that is, justice demands that
“Civil Disobedience,“ in Miscellanies (Boston:
there be equal opportunity to life’s goods, and
Houghton Mifflin, 1983): 136–137.
whether people have equal opportunity depends,
5. W. T. Jones, A History of Western Philosophy: The
among other things, on their health.20 Another Classical Mind, 2d ed. (New York: Harcourt,
example is found in the writings of Walter Brace, & World, 1969): 214–216.
Lippmann, a political commentator more than half 6. This was asserted by the neo-Platonist Porphyry
a century ago. He held a rather utilitarian view that (ca. A.D. 232). However, others believe that the
we ought to agree that there are certain rights work got its name because it was edited by
because these provide the basis for a democratic Nicomachus. See Alasdair MacIntyre, After Virtue
society, and it is the society that works best. It is not (Notre Dame, IN: Notre Dame University Press,
that we can prove that such rights as freedom of 1984): 147.
7. W. T. Jones, op. cit., p. 233.
speech or assembly exist, we simply accept them for
8. See the selection in this chapter from The
pragmatic reasons because they provide the basis
Nicomachean Ethics.
for democracy.21
9. Thomas Aquinas, “Summa Theologica,” in Basic
The notion of rights can be and has been dis- Writings of Saint Thomas Aquinas, Anton Pegis
cussed in many different contexts. Among those (Ed.) (New York: Random House, 1948).
treated in this book are issues of animal rights 10. This is obviously an incomplete presentation of
(Chapter 16), economic rights (Chapter 13), fetal the moral philosophy of Thomas Aquinas. We
and women’s rights (Chapter 9), equal rights and should at least note that he was as much a the-
discrimination (Chapter 12), and war crimes and ologian as a philosopher, if not more so. True and
universal human rights (Chapter 18). complete happiness, he believed, would be
In the reading selections here from Thomas achieved only in knowledge or contemplation of
God.
Aquinas and John Locke, you will find discussions
11. Aristotle, Politics, Chap. V, VI.
of the grounding of morality and rights in human
12. Thomas Hobbes, Leviathan, Michael Oakeshott
nature.
(Ed.) (New York: Oxford University Press, 1962).
13. David Hume, Treatise on Human Nature (London,
NOTES 1739–1740).
1. Thomas Jefferson, “The Declaration of Indepe- 14. Such a view can be found in Kant’s work The
ndence,” in Basic Writings of Thomas Jefferson, Critique of Judgment.
Philip S. Foner (Ed.) (New York: Wiley, 1944): 15. See Chauncey Wright, “Evolution by Natural
551. Selection,” The North American Review (July 1872):
2. John Locke, Two Treatises of Government (London, 6–7.
1690), Peter Laslett (Ed.) (Cambridge: Cambridge 16. See Roscoe Pound, Jurisprudence (St. Paul, MN:
University Press, 1960). West, 1959).
3. http://en.wikipedia.org/wiki/Guantanamo_Bay_ 17. Voltaire, Ouvres, XXV, 39; XI, 443.
detention_camp. 18. Thomas Jefferson, Declaration of Independence.
4. This is the basic idea behind the theory of civil 19. On negative or liberty rights see, for example, the
disobedience as outlined and practiced by Henry work of Robert Nozick, State, Anarchy and Utopia
David Thoreau, Mahatma Gandhi, and Martin (New York: Basic Books, 1974). See further dis-
Luther King, Jr. When Thoreau was imprisoned cussion on welfare and liberty rights in Chapter
for not paying taxes that he thought were used 13, “Economic Justice.”
for unjust purposes, he wrote his famous essay, 20. Norman Daniels, “Health-Care Needs and Distri-
“Civil Disobedience.” In it he writes, “Must the butive Justice,” Philosophy and Public Affairs, 10, 2
citizen ever for a moment, or in the least degree, (Spring 1981): 146–179.
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21. The term pragmatic concerns what “works.” some way. For Walter Lippmann’s views, see
Thus, to accept something on pragmatic grounds Essays in the Public Philosophy (Boston: Little,
means to accept it because it works for us in Brown, 1955).

Reading QUESTION 94

Article 2, Whether Natural Law Contains


On Natural Law Many Precepts or Only One
In the human context, the precepts of natural law
THOMAS AQUINAS relate to activities in a way similar to first principles
in demonstrations. But there are many indemon-
strable first principles. Therefore there are many
Study Questions precepts of natural law.
As was previously stated, precepts of natural law
1. What is the chief characteristic of first principles, relate to practical reason just as the first principles
both of demonstration and of practical reason? of demonstration relate to speculative reason, both
2. What is the difference between something being being self-evident. However, something is said to
self-evident in itself and self-evident to us? be self-evident in two ways: one intrinsically self-
3. What is the first principle of demonstration evident, the other evident to us. A particular propo-
and on what is it founded? sition is said to be intrinsically self-evident when
4. What is the first thing that falls under the the predicate is implicit in the subject, although
apprehension of practical reason? And thus this proposition would not be self-evident to some-
what is its first principle on which all the prin- one ignorant of the definition of the subject. For
ciples of natural law are based? instance, this proposition “man is rational” is self-
5. How does one determine whether something evident by its very nature since saying “human”
is good or evil, according to Aquinas? Give entails saying “rational.” Nevertheless this proposi-
some of his examples. tion is not self-evident to one who does not know
6. What is the natural function of the human as what a man is. . . .
human? How is this related to natural law? To (Now) that which is primary in apprehension is
virtue? being, the understanding of which is included in any-
7. What is the key difference in terms of certi- thing whatsoever that is apprehended. Accordingly,
tude between principles of speculative and of the first indemonstrable principle is that one cannot
practical reason? Is there a difference here simultaneously affirm and deny something. This is
between principles and conclusions? founded in the understanding of being and non-
8. Give Aquinas’s example of this difference related being and in this principle all others are founded, as
to restoring the belongings of someone. stated in Metaphysics IV. Just as being is the first
9. What types of things prevent people from agree- thing that falls under simple apprehension, so also
ing in their moral judgments about particulars? the good is the first thing that falls under the appre-
10. What does Aquinas want to show by the exam- hension of practical reason which is ordered to
ples of murder as opposed to punishment? action. Every agent acts for an end, which is
11. How does Aquinas believe that we should understood as a good. Accordingly, the first princi-
decide which laws are just? ple of practical reason is the one based on the con-
cept of the good: Good is what everything desires.
From Summa Theologiae, 1265–1272. Translated from the This, accordingly, is the first principle of law:
Latin by Edward MacKinnon. Good is to be done and evil avoided. All the other
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Chapter 6 ■ Natural Law and Natural Rights 105

precepts of natural law are based on this. All con- is through rational inquisition that men come to
cern what is to be done or avoided, because practi- know which things conduce to living well.
cal reason naturally apprehends what is the human
good. Article 4, Whether There Is One
Good has the nature of an end while evil has a Natural Law for All
contrary nature. Accordingly, every thing for which As was said previously, those things towards which
a man has a natural inclination is naturally appre- man is naturally inclined pertain to natural law.
hended as a good and consequently something to Among such things it is distinctively human for a
be pursued, while anything contrary to this is to be man to act in accord with reason. Reason inclines
avoided as evil. Therefore the ordering of the pre- us to proceed from the common to the particular
cepts of natural law stems from the order of natural (as shown in Physics I). In this regard there is a dif-
inclinations. In the first place, there is the inclina- ference between speculative and practical reason.
tion of man towards natural good, an inclination Speculative reason is concerned in the first instance
shared by all substances inasmuch as they naturally with things that are necessary, or could not be oth-
desire self-preservation. The consequence of this erwise. Thus truth is easily found in proper conclu-
inclination is that whatever preserves human life sions just as in common principles. But practical
and avoids obstacles is a matter of natural law. reason is concerned with contingent matters
Secondly, there is in man a more specialized incli- involving human activity. Therefore, if there is
nation following the natural bent he shares with some necessity in common principles, there is
other animals. Accordingly these things are said to increasing error the further we descend to particu-
pertain to natural law that “nature has taught to all lar conclusions. In speculative reason, there is the
animals,” such as the mating of male and female, same degree of truth in principles and conclusions,
education of children, and similar things. Thirdly, although the truth of the conclusion may not be as
there is in man an inclination toward good based on well known to many as the principles are, for they
reason, something proper only to man. Thus man are common conceptions. In activities, however,
has a natural inclination to know the truth about there is not the same degree of truth or practical
God, and that he should live in society. On this rectitude, among all people concerning conclu-
ground, those things that stem from this inclination sions, but only concerning principles. Even those
are also a matter of natural law. Thus, man should people who share the same rectitude concerning
overcome ignorance and should not offend fellow conclusions do not share the same knowledge. . . .
members of society, and similar considerations. With regard to the proper conclusions of practical
reason, all do not share the same truth or rectitude.
Article 3, Whether All Acts of Virtue Even those that do share equal truth are not
Are Prescribed by Natural Law equally known. For everyone, it is right and true to
. . . All those things to which man is inclined by act in accord with reason. From this principle fol-
nature pertain to natural law. Everything naturally lows a quasi-proper conclusion, that debts should
inclines to operations that are appropriate to its be paid. This is true as a general rule. However, it
form, as fire toward heating. Since a rational soul is may happen to be harmful in a particular case, and
the proper form of humans the natural inclination consequently unreasonable to give goods back, if
of a man is to act according to reason. And this is for example someone is intending to attack the
acting virtuously. In this respect, all virtuous acts homeland. Thus, uncertainty increases the more
pertain to natural law. Each person’s reason natu- we descend to particulars. Thus if it is claimed that
rally tells him to act virtuously. However, if we speak goods are to be restored with certain precautions,
of virtuous acts in themselves, or according to their or under certain conditions, then the more detailed
proper species, then not all virtuous acts are mat- the conditions are, the more uncertainty increases,
ters of natural law. For many things accord with even to the degree that it is not clear whether or
virtue, though nature lacks an initial inclination. It not they should be restored.
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106 PART ONE ■ ETHICAL THEORY

Accordingly, we claim that first principles of nat- the prohibition of murder is derived from the gen-
ural law are the same for all, but in rectitude and eral principle that evil should not be done. Other
knowledge. However, the quasi conclusions from things, however, have the form of a determination.
these principles are for the most part the same for Natural law requires punishment for the evildoer,
all both in rectitude and knowledge, though in a few but whether he receives this or that penalty is a
cases there can be a deficit both with respect to rec- particular determination of natural law. Both
titude because of some particular impediments (just forms, accordingly, are found in human law.
as things naturally generated and corrupted are However, determinations of the first mode are
deficient in a few cases because of obstacles) and not only contained in human law, but they also
there can also be a deficit in knowledge. The reason have force through natural law. The second
for this is that some people have their reason per- mode, however, derive their force only from
verted by passion, which may be due to bad customs human law. . . .
or to a defective natural disposition. . . .
Article 3
QUESTION 95 In every being that is for an end it is necessary that
its form has a determinate proportionality to the
Article 2, Whether Every Law Fashioned end, as the form of a saw is geared towards cutting
by Humans Is Derived from Natural Law as is clear in Physics II. Anything that is ruled and
But it should be recognized that something can be measured should have a form proportioned to its
deviant from natural law in two ways. The first is ruler and measure. Now human law has both,
as a conclusion from principles; the other as a because it is something ordered to an end; and it
determination of some common generalities. The has a rule or measure regulated or measured by a
first mode is similar to the practice of the sciences, higher measure, which is both divine law and the
where conclusions are produced by deduction law of nature, as previously explained. The end of
from principles. The second mode, however, is human law is the well- being of humans . . . accord-
more like what occurs in the arts, where common ingly, . . . the first condition of law posits three
forms are tailored to special cases. A carpenter, for things: That it accords with religion, inasmuch as it
example, must determine the common form of a is proportioned to divine law; that it fosters disci-
home to be this or that particular shape. Therefore, pline, inasmuch as it is proportional to natural law;
some things are derived from the common princi- and that it advances well-being inasmuch as it is
ple of natural law in the form of conclusions. Thus proportional to human needs.

Reading Study Questions

1. What two things characterize human beings in


S e c o n d Tr e a t i s e o f their natural state, according to Locke?
2. On the second characteristic, why does Locke
Civil Government hold that human beings are equal?
3. Why is the natural state of human liberty not a
JOHN LOCKE
state of license, according to Locke? What does
he mean by that?
Selection from John Locke, Second Treatise on Civil Government 4. How does the “state of nature” provide a basis
(London, Routledge and Sons, 1887). for a “law of nature,” according to Locke?