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date: 25 May 2020

Natural Law

Abstract and Keywords

This article discusses the meta-ethical presuppositions necessary for understanding the ethical naturalism common to several contemporary natural law arguments. This analysis, while conscious of the historical antecedents in medieval Aristotelianism with special reference to Thomas Aquinas, concentrates on the contemporary thrust of natural law discussions. Natural law theory at its best has a realist foundation based on human persons; this moral theory has rationality articulated as a necessary condition and is thoroughly cognizant of the common good or the public interest. The article attempts to spell out the set of conditions necessary for natural law, and moral and legal theory, through an analysis of the writings of several contemporary analytical philosophers and the role these central metaphysical concepts play in the respective theories.

Keywords: natural law theory, Thomas Aquinas, ethical naturalism, medieval Aristotelianism, moral theory, legal theory

Contemporary analytical philosophers, Elizabeth Anscombe (1958, 1–19), Alasdair MacIntyre (1999), Henry Veatch (1971) and Martha Nussbaum (2006), criticise English language moral theory for expressing overly Kantian or utilitarian directions. Rather than pose the ‘obligation question’ first—a common Kantian and teleological approach—these contemporary critics suggest asking the Aristotelian question: ‘What kind of lives should we live?’ These philosophers argue that Aristotelian moral theory, with the natural law theory developed by Thomas Aquinas a direct descendant, provides a corrective to the dominance of Kantian or deontological moral theory on the one hand and utilitarian/consequentialist approaches on the other. Through most of the twentieth century, ethical naturalism rooted in Aristotle did not contribute significantly to moral discussions in analytical philosophy. The heritage of natural law theory found in medieval philosophy, however, has been rediscovered by analytical moral and political philosophers and philosophers of law. Several important issues formulated recently are aligned structurally with positions posed by philosophers in the central tradition of medieval natural law theory. These metaphysical and moral queries reflect a tradition of moral realism that is important for normative ethical and political theory and for jurisprudence. This essay discusses the meta-ethical presuppositions necessary for understanding the ethical naturalism common to several contemporary natural law arguments. The architectonic of this analysis, while conscious of the historical antecedents in medieval Aristotelianism with special reference to Thomas Aquinas, concentrates on the contemporary thrust of natural law discussions.

Natural law theory at its best has a realist foundation based on human persons; this moral theory has rationality articulated as a necessary condition and is cognizant thoroughly of the common good or the public interest. Natural law theory, once placed with antiquated theories of ethical naturalism, now provides substantive analysis in contemporary moral theory, social and political theory, (p. 623) and jurisprudence. However, ethical naturalism, in order to be grounded in an order of nature, demands a realist ontology of natural kinds. This essay attempts to spell out the set of conditions necessary for natural law moral and legal theory through an analysis of the writings of several contemporary analytical philosophers and the role these central metaphysical concepts play in the respective theories.

1. Thomas Aquinas and the Classical Canon for Natural Law

The classical canon for natural law theory is often cited as Questions 90–97 in the Prima Secundae of the Summa Theologiae, where Aquinas develops a fourfold division of law: eternal law, natural law, human law and divine law. In discussing Aquinas, this essay concerns principally the first two—namely, eternal law and natural law. Aquinas distinguishes between eternal law and divine law. Divine law, for Aquinas, is a set of biblical propositions. Eternal law is the set of divine archetypes contained in the divine mind. Natural law is the set of moral principles based on human nature, which is an instantiation of the archetype of human nature in the divine mind. Positive law is the set of laws in agreement with the principles of natural law that are found in any given society promulgated by those in charge who have care of the community. While recent scholarship suggests that there is no singular canonical reading of Aquinas on natural law, nonetheless, this essay will emphasise ontological foundationalism—rooted in Aquinas’s ontological and epistemological realism—in providing an analysis of natural law theory exemplified in the writings of several contemporary philosophers yet congruent with the texts of Aquinas.

In line with Aristotle, Aquinas’s natural law theory is a second-order enquiry in which Aquinas builds his moral theory upon his philosophical anthropology of the human person. An ethical naturalist, Aquinas constructs a realist ‘metaphysics of morals’ but not a Kantian transcendental version. He builds his human nature ontology first, and from this philosophical anthropology flows moral principles and norms, indicating that his meta-philosophy is ontologically realist without being foundationalist. Scott MacDonald (1993) articulated this meta-philosophical theme: ‘Aquinas does not build his philosophical system around a theory of knowledge. In fact, the reverse is true: he builds his epistemology on the basis provided by other parts of his system, in particular, his metaphysics and psychology’. This same meta-theory holds for Aquinas’s natural law theory dependent upon an order of nature. As a second-order activity, moral theory is based on the metaphysical foundation, which is the essence or natural kind of the person. Aquinas avoids adopting what Henry Veatch (1971) once called ‘the transcendental turn’, central to Kantian moral theory and independent of any realist order of nature. Aquinas’s ethical naturalism rooted in his ontology and philosophy of mind is never anti-realist and internalist but explicitly realist and externalist.

(p. 624) Aquinas argues that a human person is, by definition, a synthetic necessary unity grounding a set of potentialities, capacities, or dispositions, which is a dispositional analysis of a natural kind. A disposition, which translates ‘inclinatio’ in Aquinas’s texts—is a structured causal set of properties that leads towards the development of the property in a specific way. In his hylomorphic metaphysics, the substantial form is the ontological ground for dispositional properties. The proponents of the ‘new natural law theory’ reject this ontological foundationalism. However, more than several philosophers studying the structure of Aquinas on natural law theory—several of whom will be discussed later in this essay—accept this ontological foundationalism as a necessary condition for and a propaedeutic to understanding Aquinas on natural law. For instance, in their essay, ‘Being and Goodness’, Stump and Kretzmann (99) suggested that ‘Aquinas’s ethics is embedded in his metaphysics … ’ Furthermore, they (98) argued that ‘in contemporary discussions, the unusual ethical naturalism that underlies all of (Aquinas’s) moral philosophy has been neglected; consequently … its basis in his metaphysics (is) not as well known … ’ They (98) go on to write that ‘Aquinas’s naturalism is a kind of moral realism that deserves serious reconsideration. It supplies for his virtue-centred morality the sort of meta-ethical foundation that recent virtue-centred morality has been criticized for lacking’. In addition, John Haldane (2004, 136) referred to Aquinas’s moral theory as ‘objectivist naturalism’. This essay is in general agreement with the principal tenor of the Stump/Kretzmann analysis and Haldane’s ascription of ‘objectivist naturalism’.

2. Contemporary Positions on Natural Law Moral and Legal Theory

The surprising renewal of natural law jurisprudence rising like the phoenix in mid–twentieth century began with the jurisprudential writings of H. L. A. Hart (1961, 194 ff.) and Lon Fuller (1964, 84–86); following the Second World War, Hart and Fuller focused attention on the Nuremberg trials and the corresponding criminal charges of ‘Crimes against Humanity’. In the context of a pervasive legal positivism, Hart and Fuller asked how the concept of ‘Crimes against Humanity’ could be justified philosophically. Central to this revival were Hart’s ‘core of good sense’ in classical natural law theory and Fuller’s account of ‘substantive’ and ‘procedural natural law’. The contributions of Hart and Fuller, utilizing references to medieval natural law theory, to the contemporary revival of natural law theory are never to be underestimated. The Italian philosopher of law, Alessandro P. d’Entrèves (1970, 153–54), working at Oxford with Hart, published a seminal text developing a secular version of natural law that could speak to diverse peoples with differing religious commitments. D’Entrèves was much impressed with the work of Hart, who he suggested owed much to Hobbes. While d’Entrèves referred to medieval and early-modern (p. 625) natural law theories often, nonetheless, he believed that Aquinas, for one, could not separate his natural law theory from divine or religious presuppositions. Hence, d’Entrèves argued that only a modified medieval theory, if such were possible, would be acceptable for twentieth-century natural law discussions.1 D’Entrèves was not alone in suggesting that natural law theory is always co-extensive with theological presuppositions. This theological emphasis continues to be a conundrum haunting philosophical theories of natural law.

Twenty years after the initial writings of Hart and Fuller, moral theory in English-speaking philosophy charted a new course with the 1981 publication of Alasdair MacIntyre’s remarkable After Virtue (1981), with roots deeply planted in Aristotle and his medieval followers, especially Aquinas. Nonetheless, Elizabeth Anscombe’s ‘Modern Moral Philosophy’ (1958, 1–19) served as an earlier wake-up call to analytical philosophers. Anscombe suggested the theoretical and practical bankruptcy of much analytical moral theory based either on emotivism or consequentialism. Furthermore, using natural law theoretical claims, she called for a re-working of philosophical psychology, a reinterpretation of practical reason and a return to moral virtue, which were necessary conditions for a constructive renewal of ethical theory in analytical philosophy. Structurally, MacIntyre’s philosophical writing followed Anscombe’s general schema discussing issues central to Aristotelian ethical naturalism. Philosophers beyond neo-Thomism or neo-scholasticism, however, have undertaken much of the recent creative work in natural law theory.

In discussing contemporary natural law theory, the following four claims, which are congruent with Aquinas’s theory, are central to this analysis, which is termed ‘ontological foundationalism’:

  1. 1. The ontological possibility of essence or natural kinds

  2. 2. A dispositional view of essential properties determining the content of a natural kind

  3. 3. An adequate epistemological/philosophy of mind apparatus providing an awareness of essences or natural kinds in the individual

  4. 4. A theory of practical reason undertaking the ends to be pursued in terms of human nature

3. MacIntyre’s Return to Ontological Foundationalism

MacIntyre’s moral treatises exerted significant influence in the resurgence of interest in natural law moral philosophy; his monumental moral manuscripts are clarion calls for renewed work in Aristotelian ethical naturalism. What Russell Hittinger (1989, 449) proposed twenty years ago still holds: ‘If nothing else, MacIntyre has made this [Aristotelian] recoverist project professionally respectable. Less than (p. 626) a decade [now over two decades] has passed since its publication, yet many are already prepared to admit that After Virtue represents something pivotal’. After Virtue produced a cottage industry centring on virtue ethics, akin structurally to issues on virtue articulated in many medieval natural law treatises (Adkins and Williams 2005). Anscombe and MacIntyre, among others, have argued against placing the virtue ethics of Aristotle and the natural law theory of Aquinas into the meta-ethical dustbin with those theories of ethical naturalism judged, often too quickly, of succumbing to Moore’s naturalistic fallacy. In After Virtue, however, MacIntyre was chary about committing his theory to an ontological foundation. Nonetheless, in Three Rival Versions of Moral Enquiry, MacIntyre (1990, 58) wrote: ‘The concept of good has application only for beings insofar as they are members of some species or kind’.

In Dependent Rational Animals, MacIntyre returned to Aristotle’s long-neglected ‘metaphysical biology’ and he discussed the philosophical importance of his return to this once-rejected ontological position. The query MacIntyre put forward is: Does one need an ontological foundation for an Aristotelian theory of the human person? Haldane (2000, 154) argued that in Dependent Rational Animals, MacIntyre ‘retracts this criticism and argues that an idea of the good for an agent cannot be formed independently of having a conception of the kind of being it is’. This metaphysical turn proposed a significant move towards ontological realism since MacIntyre now rejected his earlier almost post-modernist abhorrence of questions leaning towards ontological foundationalism. MacIntyre (1999, x) himself explained this significant change:

In After Virtue I had attempted to give an account of the place of the virtues, understood as Aristotle had understood them, within social practices, the lives of individuals and the lives of communities, while making that account independent of what I called Aristotle’s ‘metaphysical biology.’ … I now judge that I was in error in supposing an ethics independent of biology to be possible…. No account of the goods, rules and virtues that are definitive of our moral life can be adequate that does not explain—or at least point us towards an explanation—how that form of life is possible for beings who are biologically constituted as we are, by providing us with an account of our development towards and into that form of life. (Italics not in the original.)

Commenting on his early work, MacIntyre (Knight 1998, 263) remarked: ‘This … connection between virtue and metaphysics I had not understood when I wrote After Virtue’.

In reflecting upon a naturalism necessary for moral theory, MacIntyre is not a lone voice crying in the wilderness. Philippa Foot (2000, 123) once argued: ‘My thesis … is that the grounding of a moral argument is ultimately facts about human life …; the evaluation of the human will should be determined by facts about the nature of human beings and the life of our own species….’ Foot’s claim is aligned ontologically with MacIntyre’s return to a metaphysical biology. In principle, these positions are reducible to a philosophical anthropology, and both suggest the importance of a metaphysically grounded theory of an ‘order of nature’. This ontology (p. 627) is a necessary condition for explicating consistently a realist natural law theory. Contemporary moral philosophers will note immediately that these positions are opposed to the purportedly specious claims of ‘speciesism’ articulated by Peter Singer (Sunstein and Nussbaum 2004, 78–92) and other post-modernists. Singer’s charge of speciesism is more a rhetorical moniker than it is a justified argument. In any event, contemporary analytical philosophers like MacIntyre, Anscombe and Foot argue that without an ontological foundationalism, a moral theory purportedly rooted in the species-specific sortal properties of human nature is shredded and vacuous. MacIntyre (Knight 1998, 157) once wrote: ‘These stories … have genuine application to human lives only if and because metaphysics as well as moral claims can be sustained within philosophy’.

4. Veatch’s Ontological Foundationalism

Henry B. Veatch (1986, 1990) is another non-Thomist twentieth-century philosopher who considered natural law theory as a conceptual response to non-cognitivism and intuitionism and who addressed the importance of natural law in developing an adequate account of human rights. Acknowledging the importance of Aquinas on his own philosophical work, Veatch (1986, 13) once wrote: ‘May I simply say that my own program ought perhaps to be regarded as amounting to little more than exercises in dialectic, and in a dialectic directed to the overall purpose of trying to rehabilitate Aristotle and Aquinas as contemporary philosophers’. The thrust of Veatch’s meta-philosophy was to engage classical ethical naturalism into a dialectical discussion with non-cognitivism and intuitionism then prevalent in mid-century analytical philosophy. Veatch’s For an Ontology of Morals began this significant dialectical discussion with modern and contemporary analytical moral philosophy. Like MacIntyre, Anscombe and Nussbaum, Veatch (1971, 3) ponders the following issue: ‘Could it be that contemporary ethics has just about reached a dead end?’

As an Aristotelian realist, Veatch criticised the presuppositions of Kantian philosophy that had made serious inroads into contemporary philosophy. With Kant, what Veatch called ‘the transcendental turn’ is dominant. In using the transcendental turn, Veatch brought to the forefront of philosophical discussion the radical nature of conceptual dependency that characterizes Kantian philosophy and, according to Veatch, much mid-twentienth-century moral philosophy. This conceptual dependency marked by the transcendental turn entails a denial of both metaphysical and moral realism and depicts the foundationalist nature of many philosophical issues common to modern philosophy from the time of Descartes onwards.2 One consequence of the transcendental turn is the abandonment of philosophical realism, and, a fortiori, of natural law theory rooted in any ‘order of (p. 628) nature’. Gilson once noted in discussing realism in medieval philosophy: ‘Ab esse ad nosse valet consequentia’, which is in opposition to the transcendental turn; the transcendental turn is the meta-philosophical principle against which Veatch marshalled much of his argument. This meta-philosophy explains the almost absence of serious work in as well as entrenched philosophical opposition to natural law theory in the predominant secular writers in Western philosophy during the first half of the twentieth century. Veatch sought to reinstate ontology as a necessary condition for undertaking moral theory. Veatch used what he called ‘The Euthyphro Question’ to justify foundational claims. Ralph McInerny’s (1992) natural law account is similar structurally to Veatch’s analysis. MacIntyre (Knight 1998, 38), too, suggested that ‘ … the salient feature of contemporary politics marks the frustration of the political hopes of the Enlightenment and especially of Kant’.

In discussing how natural law might embrace a theory of obligation, Veatch (1990, 116) adopted what he called a ‘metaphysics of finality’, which he gleaned from the insights of René-Antoine Gauthier. The ends to be attained are determined by the content of the natural kind of the human person. Veatch and Gauthier argue that this differs radically from ordinary teleological or consequentialist theories like utilitarianism. Therefore, the dispositional view of human nature rooted in Aristotelian potentialities enables Veatch’s version of natural law theory not to succumb to the charges of the naturalistic fallacy and provides a justification for a theory of obligation. In other words, these ends ought to be obtained because of the very dispositional structure of human nature. The ends are not arbitrary but are determined by the natural kind of human nature itself. Obligation is rooted in the ends themselves. This is an important claim necessary to explicate conceptually the theory of teleology necessary for natural law theory. This teleology grounded in the concept of a natural kind comprised of dispositional properties provides an alternative account of teleology to that found in modern and contemporary consequentialist moral theories. In effect, this renders Bentham’s (Schofield 2003) charge that natural rights were nothing but ‘rhetorical nonsense—nonsense on stilts’, vacuous conceptually.

5. Finnis and the ‘New Natural Law’ Theory

John Finnis’s (1982, 1983, 1998) work is almost singularly important in bringing medieval theories of natural law into mainstream discussions within twentieth-century analytical jurisprudence. His Natural Law and Natural Rights developed a contemporary reconstruction of classical natural law. Finnis, however, while claiming that his moral and legal theory is in the stable with other contemporary natural law authors, nonetheless rejects the ontological foundationalism that MacIntyre, Veatch, Anscombe, McInerny and Foot adopt. In constructing his natural law theory, Finnis appropriated the early insights of the American neo-Thomist, Germain Grisez; (p. 629) Grisez’s (1965) seminal article on practical reason was an important hallmark for what has become known as ‘the new natural law’ theory. In articulating and defending this revisionist natural law theory, Finnis (1982, 22) puts forward what he takes to be a list of basic human goods: life, knowledge, play, aesthetic experience, friendship, practical reasonableness and religion. Finnis, however, argues that this set of basic goods, which are per se nota propositions, is known directly by practical reason. This determination is what Finnis refers to as the concept of ‘objectivity’, rather than the concept of ‘nature’. These basic goods, however, are not grounded in a philosophical anthropology, which Finnis calls ‘reductivism’. In Fundamentals of Ethics, Finnis (1983, 22) wrote: ‘Ethics is not deduced or inferred from metaphysics or anthropology’, and that ‘… the first principles of natural law … are not inferred from metaphysical propositions about human nature’. Accordingly, Finnis rejects endorsing any reductive form of moral theory rooted in any form of natural kind anthropology. Thus, Finnis is opposed in principle to the ontological foundationalism found in much classical and contemporary natural law theory, especially in Veatch, MacIntyre and McInerny.

What drives Grisez, Finnis and their ally, Robert George (1993), is developing a natural law theory capable of sidestepping Moore’s naturalistic fallacy. If the basic goods are not reducible to natural properties, this non-reductivism purportedly avoids the naturalistic fallacy and any form of the ‘is/ought’ problem. Because the basic goods are not derived from an ontology of the human person, they are ‘stand-alone’ moral properties known directly by practical reason. Haldane (2000, 154) and this author (Lisska 1984, 288–90) have suggested that the awareness of the basic goods appears reducible to intuition similar to Sir David Ross’s (1930, 19–20) account in The Right and the Good. George, it should be noted, has published profusely defending Finnis’s account of natural law theory. His Making Men Moral proposes to reconcile natural law theory with human rights theories in the American liberal tradition.

In offering a critique of Finnis’s revised theory of natural law, Veatch and McInerny, among others, argue that Finnis has removed the metaphysical foundation for natural law (Lisska 1991, 55–71). McInerny (1998) once argued that Finnis’s theory is reducible to ‘Natural law without nature’. MacIntyre’s later writings illustrating his rediscovery of Aristotle’s metaphysical biology respond in principle to the new natural law philosophers. It appears, moreover, that the shadow of Kant hovers more heavily on this so-called ‘new theory of natural law’ than Grisez, Finnis or George are wont to admit. Furthermore, if the new natural law theory is similar to Ross’s ‘intuitionism’, then the awareness of the basic human goods is dependent upon a direct intuitive awareness of these goods, through which Finnis incorporates a cognitive dimension into practical reason. This approach renders practical reason more cognitive than what most medieval Aristotelians, especially Aquinas, would accept. Aristotelians classically divided reason into two functions: theoretical reason, which is the ‘knowing’ aspect of reason, and practical reason, which is the ‘choosing’ or ‘undertaking’ aspect of reason. Moreover, choosing or undertaking depends on prior knowledge; one can only choose or undertake that which is a ‘good’ after knowing that it is a good. The new natural law theory account appears to conflate (p. 630) the Aristotelian distinction between theoretical and practice reason. MacIntyre, Veatch and McInerny, in elucidating natural law, adopt ontological realism of human nature as a necessary condition for elucidating the fundamental human goods.

In defending Finnis, George (1993, 35) argued that Finnis adopted an epistemological principle first, in which analysis points to the ontological structure of the human person; this is what Gilson would refer to as ‘a nosse ad esse valet consequentia’. Hence, in some way there is a ‘pointing’ back to the human nature by an analysis of the basic goods first. The worry here is that it would seem that, insofar as MacIntyre and Veatch adopt a form of metaphysical realism, there is a structure of reality prior to the epistemological issues. George appears to have adopted the transcendental turn that Veatch indicates is incompatible theoretically with metaphysical realism and natural law theory. In De Veritate (q. 21 a. 3 arg. 1), as Veatch (1990, 256) noted, Aquinas wrote: ‘secundum Philosophum … bonum est in rebus’; this passage is translated: ‘Good is found in things, as the Philosopher (Aristotle) indicates’. How practical reason points back to human nature is unclear in the new natural law theory.

6. Nussbaum’s ‘Capabilities Approach’ and ‘Aristotelian Ethical Naturalism’

Martha Nussbaum, never one to travel far from her original Aristotelian efforts, suggested the importance of Aristotelian insights for government and politics. In this regard, Nussbaum is aligned conceptually with the political and legal goals of natural law theory proposed by Hart, Fuller and d’Entreves. Nussbaum (1993, 265) once wrote:

I discuss an Aristotelian conception of the proper function of government, according to which its task is to make available to each and every member of the community the basic necessary conditions of the capability to choose and live a fully good human life, with respect to each of the major human functions included in that fully good life. I examine sympathetically Aristotle’s argument that … that task of government cannot be well performed, or its aim well understood, without an understanding of these functionings—[i.e.], the major human functions included in that fully good life.

In discussing the ‘major human functions’ necessary for justified human law, Nussbaum is connected closely with several concepts central to a natural law position. In addition, Nussbaum (Magee 1998, 53) once wrote: ‘… among the good things [in Aristotle’s political theory], is an account of the proper function of government or politics as the provision to each citizen of all the necessary conditions for the living of a rich good human life’. The ‘Capabilities Approach’ is central to determining the content for a ‘rich good human life’.

(p. 631) Nussbaum’s work illustrates important themes long associated with natural law moral and political theory. Medieval and renaissance natural law philosophers in principle adopted these meta-ethical principles on the nature of society and the role of good government, which are significant in terms of their non-enlightenment structure. Interesting similarities exist between Aquinas’s set of dispositional properties defining human nature and Nussbaum’s ‘capabilities approach’. Nussbaum (2006, 21), in Frontiers of Justice, suggests that her capabilities approach ‘revives the Grotian natural law tradition … ’ and argues (2006, 285) that the basic capabilities are not based on any particular human person but are ‘the basic capacities characteristic of the human species’. Nussbaum argues that the capabilities represent the ‘necessary conditions of a life worthy of human dignity’. She (2006, 76–78) lists ten ‘central human functional capabilities’, which are: ‘life, bodily health, bodily integrity, imagination, emotions, practical reason, affiliation, compassion for other species, play, and control over one’s environment in both the material and political senses’. In ‘Non-Relative Virtue’, Nussbaum (1993, 263–64) developed an earlier and mildly modified list of these capabilities.

In contrast to contractarian rights theory—what Christine Korsgaard (2003) refers to as the ‘constructivist’ position exemplified by John Rawls and Bernard Williams—Nussbaum (2006, 87) argues: ‘… the capabilities approach is … an outcome-oriented theory and not a procedural theory’. She continues: ‘the capabilities approach goes straight to the content of the outcome, looks at it, and asks whether it seems compatible with a life in accordance with human … dignity’. In providing only what one might call a ‘thin theory of the good’, modern and contemporary contractarian political theories attempt to dismiss any connection with natural rights and natural law. Contractarian theory separated the right from the good, whereas the Aristotelians affirm a relational dependence between the two. Nussbaum’s texts mirror Martin Golding’s (1975, 31) natural law suggestions that political and legal theory must be attentive to ‘human needs, human purposes, and the human good’.

In Frontiers of Justice, Nussbaum (2006, 86) argues that ‘the Aristotelian account insists that the good of a human being is both social and political’, which resonates with classical natural law theory. Yet Nussbaum, like Finnis, rejects any dependence on an ontological foundation for moral and political claims; she does not adhere to the ‘reductive thesis’ against which Finnis railed. Aligning her position with the Stoics, Nussbaum (2006, 36) argues: ‘We may, however (with Cicero, who was agnostic in metaphysics), view these claims as freestanding ethical claims out of which one might build a political conception of the person that can be accepted by people who hold different views in metaphysics and in religion’.

Prima facie, Nussbaum’s analysis appears foundationally to resemble Finnis’s non-reductivism. What needs to be discussed is how Finnis’s direct awareness of the basic human goods through practical reason is similar to or differs from Nussbaum’s awareness of the fundamental human capabilities. Nussbaum (2007, 15) (p. 632) appears to postulate the ‘free-standing’ human capabilities as a theoretical means by which she can develop a workable social and political theory bypassing the formalism of Rawls and Dworkin. Finnis appeals to a direct cognitive relation in order to be aware of the basic human goods. Nonetheless, both philosophers appear to be theoretically cozy with some form of intuitive awareness that is non-reductive and self-evident. Veatch, MacIntyre and McInerny all demand more ontological justification.

In addition, Nussbaum argues that the ethical naturalism of Aristotle must be modified with a second natural law insight of the Stoics. In developing her capabilities approach to value theory, Nussbaum chides Aristotle for missing the concept of significant moral equality that, she suggests, is found in the seminal natural law writings of the Stoics. Nussbaum argues that Aristotle granted citizenship in the polis only to male Greek citizens, entailing that slaves, women and children were placed in an inferior status. Accordingly, Nussbaum modifies her Aristotelianism by accepting ‘human equality’ that she insists is found in the Stoics. Most historians of philosophy agree that the Stoics condemned slavery since each human person is part of the universal ‘brotherhood of mankind’, implying that all persons need to share in and profit from the largess of the polis. For Nussbaum, Aristotle provides the content for the political theory—the historical roots of her capabilities approach—while the Stoic concept of ‘universal brotherhood’ entails in a preliminary way what later modern and contemporary philosophers call human rights.

That there are significant similarities to medieval theories of the human person articulated in Nussbaum’s capabilities approach is not to be gainsaid; however, the scope of the foundational applicability differs. What is needed is an ontological foundation in the human person on which a theory of the human good is rooted. Here medieval philosophers like Aquinas and Nussbaum part company. In addition, for Aquinas, this set of human properties is not known solely by intuition—mental awareness of which both Finnis and Nussbaum appear to adopt; an intuitive awareness of basic goods or human capabilities, it would seem, is not a sufficient condition to ground a moral theory of the human person. Nussbaum (2006, 305) noted: ‘The capabilities approach … starts from the notion of human dignity and a life worthy of it’. Medieval philosophical realists would argue that ontological questions—especially the natural kind of a human person—are necessary conditions for ethical naturalism. Grotius (1625), too, it appears, connected his theory of human rights to a metaphysical theory of human nature, when he wrote that dignity and sociability are the two polls around which a moral theory must be built. Sociability he characterised as ‘an impelling desire for fellowship, that is for common life, not just any kind but a peaceful life, and organized according to the measure of his intelligence, with those who are of his kind’. Nussbaum, however, appears foundationally to be aligned more closely with Finnis’s new natural law theory than with the ontological foundationalism articulated by MacIntyre and Veatch.

(p. 633) 7. Dworkin and ‘Natural Law Revisited’

Several commentators on contemporary natural law have suggested that Ronald Dworkin’s jurisprudential theory is a significant contribution to natural law jurisprudence, with reference to his Taking Rights Seriously (1978), Law’s Empire (1986) and ‘“Natural” Law Revisited’ (1982) as illustrations. These arguments elucidate Dworkin’s analysis of judicial decision making, where the moral principles of a society are necessary conditions for justified legal decisions in the courtroom.

Dworkin is widely regarded as a creative jurisprudential voice articulating what he calls ‘naturalism’. Dworkin argues that the validity of a legal system depends upon the moral norms common to the fundamental governing principles of a society. Furthermore, the moral principles of freedom, due process and equality are essential to the United States’s Constitution. Given this structure, it was inconsistent theoretically that the United States adopted slavery. Human rights are, Dworkin suggests, the political ‘trumps’ that protect the individual person against what he calls ‘majoritarian preference’. In demanding that the laws of a society be congruent with the basic political morality of that society, his legal positivist critics suggest that Dworkin has entrenched natural law leanings. How entrenched and accurate this natural law leaning really is, however, is an important philosophical question that must be addressed.

In his ‘“Natural” Law Revisited’, Dworkin (1982, 165) discusses moral principles necessary for judicial decision making in the following way:

According to naturalism, judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract. In the past several years, I have tried to defend a theory about how judges should decide cases that some critics … say is natural law theory and should be rejected for that reason. If … any theory of law sometimes depends on the correct answer to some moral question is a natural law theory, then I am guilty of natural law…. Suppose this is natural law. What in the world is wrong with it? [Italics not in original.]

Here one observes an influential English-speaking analytical philosopher of law considering the principles of political morality as necessary conditions for adequate judicial decisions. Furthermore, Dworkin provides a specific reference to natural law theory. That this is at least a prima facie connection with some of the issues in classical natural law theory should be apparent. However, by naturalism Dworkin means the process of determining from the principles of political morality the best justification for a legal decision. Dworkin’s naturalism is neither equivalent to nor co-extensive with natural law theory, either ‘classical’ or ‘new’.

Insofar as Dworkin remains agnostic about the role human nature or any theoretical claims about an order in nature might play as foundational for his moral and (p. 634) political principles, he does not fit under the umbrella of natural law as discussed in this essay. Natural law philosophers respond to the contractarianism of Dworkin—and to Rawls and Nozick—by proposing a ‘thick’ as opposed to a ‘thin’ theory of the human good. This natural law account based on a metaphysics of natural kinds poses a foundational query for contemporary rights philosophers adopting a ‘thin theory’ of the human good. Natural law philosophers argue that this lacuna is a theoretical problem with most theories of liberal jurisprudence.

The natural law account articulated in this essay based on a metaphysics of natural kinds suggests a moral and a jurisprudential limit for contemporary rights philosophers like Dworkin—and his contemporaries, Nozick and Rawls—who adopt ‘thin theories’ of the human good. These theories lack any substantive content based on the foundational principles of human nature. Liberalism in jurisprudence, by its very definition, denies any role for substantive content to the fabric of lawmaking. Dworkin (1984, 191) once wrote that ‘… government must be neutral on what might be called the question of the good life’. Without the content that a theory of a human person provides, jurisprudence is limited in its attempt at achieving a substantive theory of human rights. Rawls’s person who has a passion for counting blades of grass in city squares or Dworkin’s beer-drinking TV addict both may be leading a good life—one of ‘integral human fulfilment’, to appropriate a Finnis term—provided they have chosen these ends after mature reflection. This appears similar to Finnis’s ‘objectivity’. A thick theory of human nature espoused by the ethical naturalism put forward in this essay requires more than what Rawls, Nozick and Dworkin’s thin theories permit.

In his Making Men Moral, from the perspective of the new natural law theory, George (1993) addresses the set of issues that contemporary philosophers refer to as ‘moral perfectionism’. Moral perfectionism is consistent, it would appear, only within the context of a theory of the human person grounded on a theory of the natural kind of human nature. This natural law schema provides a set of properties that determine the content of the human good to be attained. Without this content, one falls quickly into the vacuum of formalism. Such formalism is, in many ways, the hallmark of Kantian moral theory, most ‘good-reasons’ moral theories, all legal positivism, much legal realism, and most liberal jurisprudence. One might ask: what justifies a morally right action for Kant or a set of human rights for Dworkin, Nozick or Rawls? In the end, it is the exercise of reason itself—what contemporary moral philosophers often refer to as a ‘good-reasons approach’ to moral reasoning. Dworkin often refers to this ‘good-reasons’ method of rational justification in legal matters. What the natural law position offers, if only in a broad and general way, is a set of human properties or qualities—human nature—without which a justification of a moral theory or a legal system—including a set of human rights—does not respond to Veatch’s Euthyphro question. Since human nature or essence depends upon the foundational structure of a natural kind, a set of metaphysical claims is a necessary condition towards explicating natural law theory. In commenting on Rawls’s formalist—or ‘good-reasons’—theory of moral justification, Nussbaum (1986, 311) once noted: ‘Aristotle’s view of phronesis cannot (p. 635) avail itself of this strategy … [of] value neutral abilities such as imagination, empathy, factual knowledge’. Hence, Nussbaum (1986, 311) argues that the person of practical reason utilizes more reasoning abilities than ‘an enumeration of intellectual abilities… ’ Nussbaum seeks more in her account of human rights theory than Rawls’s procedural formalism; this is where her capabilities approach enters the discussion. Nussbaum, however, considers the postulation of the stand-alone capacities as sufficient; MacIntyre, Veatch and McInerny require an ontological justification for the postulation.

8. The Role of Natural-Kind Ontology

In order to grasp the import of medieval ethical naturalism as developed in the texts of Aquinas and its impact on contemporary natural law theories, one needs to understand the concept of a natural kind as an essence necessary for ontological justification; this suggests an interesting realist connection with recent analytical philosophy. Michael Ayers (1981, 248) observed that late-twentieth-century philosophical work illustrated similarities with the Aristotelian elucidation of natural kinds: ‘… there is some awareness that the [Kripke/Putnam] view [on natural kinds] is not so new as all that, since it is not at all unlike Aristotelian Doctrine’. Ayers (1981, 267) also wrote that the evidence of modern biology suggests that a species, as a natural kind, ‘… is a far cry from the radical arbitrariness that Locke (and most Empiricists) took to infect all classifications’. In the last two decades of the twentieth century, serious discussions about the concepts of essence and essential properties—especially as generated through the means of modal logic—returned to vibrancy in several writings by analytical philosophers.3 This account of natural kind as an essence is analogous with the ‘metaphysically necessary’ that Kripke discussed in Naming and Necessity (Kripke 1971: 144–46). MacIntyre’s later defence of his once-rejected ‘metaphysical biology’ illustrates the realism resonating in recent renditions of natural law. This is what Finnis rejects as a necessary condition for natural law theory.

Accordingly, a necessary condition for moral naturalism is a metaphysical theory of a natural kind of the human person. Unlike modern and contemporary empiricists and nominalists, Aristotle grounded his moral theory in the essential properties central to the structure of a human person. In his Categories (Barnes 1984, 3), Aristotle distinguished between properties ‘said of’ an individual or primary substance and properties ‘found in’ an individual or primary substance. This distinction grounds the important ontological difference between essential or sortal predication and accidental or incidental predication. Natural law moral theory depends on the development of the sortal dispositional properties determining the human essence. If properties ‘said of’ an individual refer to an empty class, then natural law theory will be moribund from the beginning. In opposition to current anti-realism common to contemporary philosophy following Kant, most (p. 636) contemporary natural-law philosophers work within the context of ontological realism and epistemological realism. As MacIntyre was forced to admit eventually, natural-law moral theory is impossible theoretically without philosophical realism as a necessary condition. In principle, natural-law theory requires as a necessary condition a form of externalism justified by at least a modified reliabilism in the philosophy of mind. Dworkin and Finnis would absent their theories from these ontological and epistemological requirements.

Moreover, moral theory, and a fortiori a theory of human or positive law and a derivative but not an explicit theory of human rights, is rooted in the foundation of the human person as an instance of a natural kind. A human person is, by definition, a substantial unity grounding a set of capacities, which is a dispositional analysis of a natural kind. A disposition is a structured causal set of properties that leads towards the development of the property in a specific way. The structure of a tulip bulb is organised biologically to produce a tulip flower and not a geranium. And so forth. In Aristotelian metaphysics, the substantial form is the ontological ground for this set of dispositional properties. Aristotle divides these capacities into three generic headings, which serve as the basis of this theory of a natural kind for human persons. This account of human nature—the human natural kind and ‘order of nature’—is based upon the insights of Aristotle’s Nicomachean Ethics and De anima. Following the suggestion Plato (Wedberg 1971, 49) offered in the Phaedrus, natural-law philosophy uses ontological essences to categorize nature—to ‘divide nature at its joints’. To appropriate medieval terminology, human nature is the quidditas determined by materia prima and forma substantialis. Formal cause is a necessary condition for explaining the structure of the external world. In responding to Putnam’s apparent lack of an ontological realism from an Aristotelian perspective, Haldane (2002, 97) referred to ‘the metaphysical skull’ of reality. Using the terminology of Everett J. Nelson (1967, 19–33), a natural-kind essence might best be referred to as a realist set of ‘synthetic necessary properties’. This discussion of essence comprised of dispositional properties required as an ontological foundation for natural-law theory differs from that held by most modern and contemporary philosophers; an essence is not a set of fixed, static, simple properties. The Aristotelian biological paradigm for philosophical explanation rejects the mathematical model so common to Plato and later to Descartes, and also to Russell and Moore. An essence composed of dispositional properties is ‘directed towards’ a certain developmental end, which is where the teleological enters a natural-law account. A set of dispositions reaches its ‘end’ when the set has developed as it should according to its very nature or being—which refers to its internal causal structure. To function well is to develop the dispositions or capacities according to the nature or structure one has, which is a de re and not a de dicto account. In the essentialist language of the hylomorphism common in Aristotelian studies, the development of the dispositional properties of the substantial form, which is the formal cause, is to attain the final cause. Often in their accounts of natural law, MacIntyre, McInerny and Veatch resort to these Aristotelian philosophical categories. In an analogical fashion, Nussbaum used the capabilities of the human person.

(p. 637) The final cause as a teleological goal is built into the very structure of the human essence, which is what Veatch and Gauthier called ‘The Metaphysics of Finality’. The development of the human dispositional properties leads to what Aristotle called eudaimonia. The virtues common to MacIntyre’s After Virtue are the acquired means that enable each human agent to exercise those actions that determine eudaimonia—or felicitas and beatitudo, as Aquinas referred to ‘functioning well’ and contemporary Aristotelians ‘flourishing’. This is the foundation in human nature for what natural law philosophers call the natural moral laws, which is the structure of ethical naturalism as developed by MacIntyre, Veatch and McInerny.

Hence, the natural-law theory of MacIntyre, Veatch and McInerny requires, as an obligation, for each human agent to act in such a way that one’s natural, human ends are fulfilled, which leads to flourishing of a human person. Moreover, like Aquinas, MacIntyre, Veatch and McInerny emphasize the prominence of reason as opposed to will. To the contrary, Scotus and Ockham alter the direction of the discussion emphasizing the role of the will and the ensuing voluntarism as central to natural law. Throughout his discussion of lawmaking and moral theory, Veatch following Aristotle argues that reason, both speculative and practical, is to be employed. Harkening back to a medieval text, law is, as Aquinas states, ‘an ordinance of reason’. A purely voluntarist account of either moral theory or jurisprudence is inadequate conceptually. In contemporary jurisprudence, Hart, Fuller and Golding defend versions of reason and are opposed to a voluntarist account. MacIntyre (Knight 1998, 265) once wrote: ‘Unlike Rorty, I believe that there are strong and substantive conceptions of truth and rational justification’.

9. The God Question in Contemporary Natural Law

One issue that contemporary students of natural law confront right from the beginning is the role God plays in any general theory of natural law. Aquinas (Lisska 1996, 264), for instance, writes that the natural law in some way participates in the eternal law: ‘Hence, it is obvious that the natural law is nothing other than the participation of the eternal law in the rational creature or human being’. Many commentators assume that it follows that God must be a necessary condition for understanding contemporary natural law. D’Entrèves (1970, 153–54), for example, in discussing Aquinas on natural law, wrote the following:

Now it seems to me that in our divided world the first and most serious stumbling block to the Thomist conception of natural law lies precisely in its premise … of a divine order of the world, which St. Thomas recalls at the very beginning of his theory of law, and from which he infers, with unimpeachable logic, the most detailed and specific consequences: supposito quod mundus divina providentia (p. 638) regatur, ut in primo habitum est. Once that premise is granted, the whole majestic edifice of laws can be established on it: eternal law, the natural law, human law, and divine law. All are ultimately based on and justified through the existence of a supreme benevolent being.

Commenting on this issue, D. J. O’Connor (1967, 60) wrote that ‘… the nature of law depends upon establishing the existence of a provident God who planned and guides the universe’, while Alan Ryan (1985, 180) argued that ‘a secular natural law theory is simply incoherent’.

An important question is, of course, where does God fit into an analysis of natural law rooted in the Summa Theologiae texts in which Aquinas explicitly distinguished eternal law from the divine law. Briefly put, divine law as revelation does not apply to a philosophical analysis of ethical naturalism. Eternal law, on the other hand, is reducible to the divine archetypes in the mind of God. A consistent account of natural law requires a metaphysical theory of natural kinds, which is the first question to be addressed. Like Kripke and Putnam, knowledge of a natural kind is possible without knowledge of God or the eternal law. Once natural kinds are justified, a contemporary natural theologian might pose a second ontological question: is the individual instance of a natural kind itself ontologically self-explanatory and totally independent, or is it a dependent being?

Natural theologians like Brian Davies (2002, 239) and Norman Kretzmann (2001, 3–22), accordingly, would ask a further, second-order metaphysical question: ‘How come any universe at all?’ or simply put, ‘Why is there something rather than nothing?’ The natural theologian challenges the naturalist to find a place on ‘the metaphysical chessboard’, arguing that the analysis of human nature—even as an instance of a natural kind—entails that a human person is a dependent being. This requires some form of the ‘essence/existence’ distinction, an ontological distinction that a naturalist metaphysician like Aristotle is not keen about affirming (Owens 1993, 38–59). The natural theologian must convince the naturalist that a dependent being—or ‘contingent being’ in cosmological argument circles—demands a real relation with an independent, Necessary Being. God as the ‘Actus Purus’—existence itself—is what provides a response to the question about ontological dependency. In his Aquinas on Being, Anthony Kenny (2002) questions the philosophical soundness of this analysis of Aquinas. This author is less pessimistic about this ontology in Aquinas.

For the philosophical, natural theologian, God, as Necessary Being, responds to this second-order metaphysical question about the dependent character of individuals of natural kinds. However, one could construct a theory of natural law rooted only in a natural-kind ontology with an essence composed of dispositional properties. What the natural theologian provides additionally is an explanation in terms of ontological dependency. The ethical naturalist, so the natural theologian would suggest, has not developed a false moral theory but rather an incomplete metaphysical theory. Veatch and MacIntyre, for example, can develop a theory of ethical naturalism from their accounts of a human essence as a natural kind. It is only when ontological dependency is raised by a natural theologian that God as a Source of Existence becomes significant philosophically. Without a divine being, nonetheless, (p. 639) Veatch and MacIntyre can develop a consistent metaphysics of natural kinds, which is a sufficient condition for an ontological ground underpinning natural law. In responding to d’Entrèves, O’Connor and Ryan, this is a compelling reason that God is not a necessary condition for explicating natural-law theory.

In Natural Law and Natural Rights, Finnis (1982, 400) articulated a similar position on the relation of God to understanding the first principles of natural law: ‘For Aquinas, there is nothing extraordinary about man’s grasp of the natural law; it is simply one application of man’s ordinary power of understanding’. Knowing human goods is, in principle, a human activity undertaken in normal human ways of knowing. In commenting on Finnis’s work, Charles Covell (1992, 222–23) wrote: ‘In Natural Law and Natural Rights, (Finnis) claimed that the principles of natural law admitted of an entirely secular derivation, which involved no metaphysical assumptions regarding the existence, nature or will of God’. While Finnis would not endorse natural-kind anthropology and is opposed in principle to ontological foundationalism in natural law, nonetheless, his position is independent of Theological Definism or Divine Prescriptivism. Covell (1992, 223) further notes: ‘Indeed, (Finnis) emphasised that it had been an essential feature of the Thomist system that, for Aquinas, the first principles of natural law were self-evident to human reason, whereas the knowledge that union with God ranked as the final human end could be acquired only through revelation’.

10. Concluding Observations

This concludes a somewhat rapid sojourn down the highways of several contemporary reiterations of natural-law theory. The historical connections of natural law are important aspects of this narrative, which are in accord with classical ontological and epistemological realism; both are necessary conditions for a consistent theory of natural-law moral, political and legal theory. Furthermore, this essay suggests how a concept of teleology might be incorporated into contemporary natural-law theory. What the natural law position offers, if only in broad brushstrokes, is a set of human qualities—human nature—without which a justification of a moral theory or a legal system—including a set of human rights—is sought in vain. Since human nature or essence depends upon the foundational structure of a natural kind, a set of metaphysical claims is a necessary condition towards explicating natural law theory.

In concluding this analysis of late-medieval natural-law theory as developed by Aquinas and its connections with modern and contemporary philosophy, one might consider Golding’s (1975, 31) suggestions, noted earlier, about the philosophical significance of natural-law jurisprudence:

The lesson of the natural law tradition is that both [legal effectiveness and legal obligation] involve attention to human needs, human purposes and the human good. Whatever the problems of this tradition, we cannot ignore its lesson in trying to understand the law that is.

(p. 640) While Golding appeals to Fuller’s procedural natural law and appears worried about the ontological demands required for a full development of natural-law theory, nonetheless, he has offered important insights about the philosophical import of natural law. A theory of dispositional natural kinds conjoined with a metaphysics of finality may transcend the conventional worries about the ontology required for natural-law theory. In opposition to Bentham’s empiricist worries about natural-law theory, contemporary philosophers provide an ‘unstilted’ version of natural law and offer the opportunity for continued discussion with empiricists on one hand and Kantians on the other, resolving the difficult yet fascinating philosophical issues in natural-law moral and political theory and in jurisprudence.

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Notes:

(1) . I have argued elsewhere that d’Entrèves is mistaken conceptually on this interpretation of Aquinas, which is essentially a form of Divine Command Prescriptivism. See Lisska (1996, ch. 5).

(2) . One might argue that the seeds of Descartes’s philosophy of mind and the demise of realism are found in the philosophy, especially the theory of perception, of Francisco Suarez, the great Jesuit scholastic philosopher of the sixteenth century. However, that is a point for another essay in the structural history of philosophy.

(3) . This renewed interest in essence as a substantive metaphysical question is common to both Anglo-American and European analytical philosophers. One needs but consider the ‘Metaphysical Project’ currently being undertaken at the University of Geneva under the auspices of Kevin Mulligan and Fabrice Correia.