Aquinas's Theory of Natural Law: An Analytic Reconstruction 0198269676, 9780198269670

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AQUINAS'S THEORY OF NATURAL LAW

Aquinas's Theory of Natural Law An Analytic Reconstruction

ANTHONY J. LISSKA

CLARENDON PRESS· OXFORD

Oxford University Press, Great Clarendon Street, Oxford ox2 6nP Oxford New York Athens Auckland Bangkok Bogota Bombay Buenos Aires Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Oxford is a trade mark of Oxford University Press Published in the United States Oxford University Press Inc., New York ©Anthony J. Lisska 1996 First issued in paperback 1997 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or lry any means, without the prior permission in writing of Oxford University Press. Within the UK, exceptions are allowed in respect of any fair dealing for the purpose of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act, 1988, or in the case of reprographic reproduction in accordance with the terms of the licences issued lry the Copyright Licensing Agency. Enquiries concerning reproduction outside these terms and in other countries should be sent to the Rights Department, Oxford University Press, at the address above This book is sold subject to the condition that it shall not, lry way of trade or othenvise, be lent, re-sold, hired out or othenvise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Aquinas's theory of natural Jaw: an analytic reconstruction/Anthony J. Lisska. Includes bibliographical references and index. 1. Natural Jaw. 2. Thomas, Aquinas, Saint, l 225? -1274. I. Title. J447. T4 52L57 1996 340' .112 -dc20 9 5-3 7006 ISBN 0-19-826967-6 3 5 7 9

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Printed in Great Britain on acid-free paper lry Biddies Ltd., Guildford and King's Lynn

TO PROFESSOR HENRY BABCOCK VEATCH

Whose work in Aristotelian moral theory has greatly assisted all of us who have worried about the structure of the arguments necessary to spell out the important claims in natural law moral theory, this book is gratefully dedicated

PREFACE

This book, like so many studies undertaken by philosophy professors, has been a long time in the making. It began some ten years ago when my interests in medieval philosophy, especially in Thomas Aquinas, led to an attempt at rethinking Aquinas's moral theory. Having undertaken advanced philosophical work in both classical scholasticism and analytic philosophy and being a philosopher interested in the major issues of medieval philosophy, often I used the tools of analytic philosophy to help make sense of the arguments found in medieval philosophy texts. Major projects directed towards the texts of Aquinas dealing both with perception theory and with natural law moral theory were undertaken. Long convinced that there are important philosophical chestnuts in these texts of Aquinas, I have wrestled with them in order to provide clearly articulated conceptual analyses of Aquinas's work. The goal has been to render an account of Aquinas which is understandable to philosophers well versed in what is generally known as the analytic tradition in English language philosophy. Another point must be noted. Prior to all of this cognitive effort blending analytic philosophy with classical scholasticism, however, was the experience of a young philosophy student who read for the first time Thomas Aquinas's Commentary on the Nicomachean Ethics. That reading had a profound existential influence on this student who, of course, is the author of this book - in that for once in his life, a moral theory actually made philosophical sense. This initial reading came under the watchful eye of C. I. Litzinger, OP, in whose classes we used early drafts of the texts which eventually became his monumental translation and publication of Aquinas's Commentary. Later this student, reading analytic philosophy, ran into the pitfalls brought against natural law theory, especially by contemporary meta-ethical discussions so dependent upon G. E. Moore's naturalistic fallacy. The issues posed so stridently by the author of the Principia Ethica and by his philosophical ancestor, David Hume (did the naturalistic fallacy really refute Aristotle and Aquinas so easily?)

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Preface

would not go away. This confrontation of analytic meta-ethics through its questioning of the foundations of ethical naturalism with Aquinas's insightful commentary on what counts for a morally virtuous life, pron1pted a long set of worries about the philosophical cogency of Aristotelian and Aquinian ethics. How might Aquinas's moral theory be reconstructed, if such a case were possible, in order to surmount the dominant anti-naturalism of analytic meta-ethics? These problems with ethical naturalism so common to analytic philosophy serve as the intellectual backdrop for this book. .1"'he first formal attempt to elucidate a reconstruction of Aquinas's theory of natural law came in 1981 with an invitation to deliver the annual Aquinas Lecture at the Josephinum School of Theology. \.,That remains of that initial attempt at a revised meta-ethical analysis of natural law theory in Aquinas, long since expanded, modified, and developed, comprises Chapter 4 of this book. The key concepts found in this chapter served as the basis for a 1995 Smithsonian Lecture in Washington, DC. A wonderful sabbatical in 1984 provided the opportunity to read and study philosophy at the University of Oxford during Hilary and Trinity terms. There I attended the lectures of John Finnis, Ronald D,vorkin, John Ackrill, Michael Woods, Dorian Scaltis, Brian Davies, and, in particular, Herbert McCabe, who delivered thoughtful Blackfriars' Lectures on Aquinas's moral theory. During this time, Brian Davies, the book review editor for New Blackfriars, asked that I review John Finnis's Fundamentals of Ethics. To be introduced seriously to Finnis's revisionist treatment of Aquinas's theory of natural law added an important dimension to my ongoing research into Aquinas's moral theory. About this time, I also began to reread carefully the work of Henry Veatch on Aristotle, Aquinas, and natural law. This project now had a new wrinkle, however, brought about through the attempt to reconcile Finnis and Veatch on the nature and structure of natural law theory in Aquinas. Several years' research efforts have gone into the project of sorting out the conceptual similarities and differences between Finnis and Veatch. The conceptual differences in interpretation and analysis of Aquinas on natural law, which Finnis and Veatch offer, are referred to often throughout this book. An article, assorted book reviews, and several papers read at professional meetings evolved and developed from the discussions and

Preface

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studies mentioned above. 'Finnis and \lcatch on Natural La'v in

Aristotle and Aquinas' appeared in the ,·4111erican Journal ~(J11risprud­ e11ce. An earlier, shoner version \Vas read at the Pacific Oi\'ision Meetings of the American Philosophical 1\ssociation. The role Finnis,s analysis plays in classical realist int.crprctations of Aquinas \Vas first presented at a regional meeting of the American Catholic PhiloSphical ,i\ssociation. Chapter 6 is heavily dependent on these earlier \vorks. The worries about the role God plays in 1\quinas's account of narural la'v \Vere first formulated in a paper read al' the C:entral Division Meetings of the American .Philosophical ,.\~~ociation .... rhis philosophical analysis in an expanded fom1 is no\\~ found in Chapter 5. The analysis of Henry \Teatch's 'Ontological Foundationalism', \Vhich makes up Chapter 7, firsr tok \\"rittcn form in a paper read at a regional meeting of the 1\meri~'3J1 (:atholic Philosophical Association. Severa) issues discussed in parts of this book appeared in various book re"ie\\rs on natural law, on rights theory, on Finnis, and on Veatch 'vhich \vere published in J\ieu.' Blai-kfria1:~, the Heytbrop Journal, and Teaching Philosophy. 'l~he

National Endo\vn1cnt for the Humanities Swnrncr Institute on 'The .\·1oral Philosophy of Aquinas', held under the tutelage of Ralph ~lclnerny at the University of Notre Dame, \Vas particularly useful. Conversations that summer with Ralph Mcinerny and David Solomon of the Institute staff, and \Vith Alasdair J\1aclntyre, Joseph

Boyle, John ~"'innis, and J\Jan Donagan, assisted irnrncnsclr as this project \\"as beginning to take it-; present focus. ~l~hc published \\'Ork of Professor lvlclncmy has helped me continually refine rny thinking on the nature and structure of Aquinas's account of narural law. As a young philosopher, n1y first fledgling efforts at reconstructing Aquinas's philosophy in order to provide e.tplicationes te.xt11s consistcnl \\rJth the rigours of contemporary analytic philosophy began under the guidance of Professor Robert (~. 'rurnbull. I have relied often on his al\vays helpful counsel and thoughtful criticism of n1y work. J\1ore than anyone else, Professor Turnbull guided my early· efforts to use analrtic philosoph)' as a tool to n1ake sense of the in1porrant philosophical issues in the texts of Aquinas. At this time I began reading rhc analytic con1mentaries by Anthony Kenny and learned very much frorn his penetrating insights. ()f course, the \vritings of Peter Geach \\'ere al"'ays full of enlightening suggestions on reading Aquinas.

Preface

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A huge dcbl of appreciation goes lo Professor 1--f cnry B. \le:itch. During the last decade, Professor Veatch has \\'ritten very 111any penetrating commcnLc; and offered constructive suggcsrions on SC\'eral drafts of papers in \\'hich too often I offered 'wooJJy' clucictations of Aquinas on nan1ral la"'· In addition, he read thoughtfully and offered important and extended insights on t\vo earlier drafts of this book. Professor Veatch never failed to provide sage advice as I continued this project \vhich overlaps in many \vays \vith his own i1nporran1 \Vork in 1\risrocelian moral philosophy. It \\'as Professor \/' catch's manrcllous analysis of contemporary 111cta-erhics, For 1111 01110/og)' oj. -,.J()r11/s, \Yhich first stimulated my o\vn rcthinlcing of 1\l1ninas on natural law and suggested creative \vays to reconsider Aquinas's meta-ethics. Ed and Abby Holtz (Ed, a good friend and l"'rustee-Emerirus of Denison linivcrsity) kindly introduced me to 1-fcnry and Janie \/catch, friends of theirs, ''lhcn both lived in Georgeto\\·n during the time Professor \teatch served as Chair of the I>hilosophy J)cpartmcnt at Gcorgct.O\Vn L:niversity. I am extremely grateful for alJ the help and assistance Brian Davies, former Regent of Studies for the English Province of the Donainica~'i ancJ Regent of Blackfriars at the LTnivcrsity of Oxford, now of Fordham l~nivcrsity, offered so graciously and so continuously during the final stages of this project. He not only read a large part of an early draft of thjs manuscript, but also gave his advice and encouragement \vhich assisted immensely in the final efforts of publication.

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Over the past fc,v years, Robert tvtcKim, Oa\id Solomon, Joseph Boyle, Ruth Caspar, Bernard Gendreau, and John F'innis have offered suggestions on various pares of 111y research efforts into 1\t.1uinas's natural ht\\' theory. Alasdair i\llaclntyre has continued to give \\rarm encouragement for the rin1ely con1plction of this sruc.iv. The philosophy students in my Denison LTnivcrsity classes and sc~­ inars on natural la\\' theory and on jurisprudence have continuallr offered l:rcativc rcspOsitivist justifications especially as developed in the '"·ritings ofJohn Austin, seemed reducible to nothing more rhan Teddy Roosevelt's 'Carry a big stick' polic)'· ()f course~ this position could not distinguish theoretically one lc~JI plicy fro1n another. 'I~he foundational thrust to legal scholarship caused by the attempt to justify the concept of 'Crimes against Humanity' brought natural la\\' theory into the forefront of legal discussions about the nature of Ja,v. Riding the current of these foundational questions came a rene\\'Cd interest in the texts of l'homas Aquinas, especially the 5'1mn1111 Theo/ogiae, I-II qq. 90-7. 1·hcsc eight questions in .-\c.1uinas soon gained pronuncnce as the principal canon f()r \Vcstcm natural la\v jurisprudence. From mid .. century on\\"ards, several philosophers of la\\f from different philosophical perspectives produced monographs dealing \\;th different aspects of natural la\\l jurisprudence. "nile some \vere developed in n1ore detail and general agreement \\'ich Aquinas than others, most referred co 1\quinas's account of narural la\\' as the classical foundation for such discussions in \.Vcsten1 philosophy..a\t mid-century, /\. P. d•Entrcvcs \\'rote what became a rather famous account of legal foundational ism entitled 1V11t1'111J I AU' ( 1951 ). ln this book, d'Entreves developed a thoughtful justification for natural la\\'. ):-ct his narural law was not the natural Ja,v of Thomas Aquinas, although it is unclear if d' Enrreves hjn1self realized this difference. In his l'o11cept Of Ltri1} ( 1961 ), H. I..... 1\. Hart wrote about the 'core of good sense' in narural la'v and spent much time articulating a coherent position on 'narural necessities'. Lon Fuller, in his Tbe A1orality OfUrdJ (1964), developed the concept of 'procedural natural law' \\thich provided a rational criterion for legal activity. Fuller's emphasis on procedure introduced a theoretical retort to legal positivism. Fuller too considered Aquinas as the harbinger of natural la"'· thinking jn Western thought. In the school of philosophy kno\\'n as classical Thomism, Jacques Maritain, Yves Sin1on, 'T~hurnas L)avit, Heinrich Ron1n1en, Thomas Gilby, and \'emon Bourke, among others, all wrote articles and hooks addressing natural la\\' theory 1

Renewed Interest in Natural Law Theory

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based upon the texts of 'fho1nas Aquinas.. Fuller once suggested a distinction 'bct\\rccn a natural la\\• of substantive ends anll a natural la\v concerned \\'ith procedures and institutions'. He articulated this distinction because, in his juity and '''orkmanship. Truth comes about through the process of creating and making. Holmes absorbed the tenets of pragmatism and applied them to the legal system and its questions. Hence, to understand the la\\', one needed ro see how ir \vorkcd, especially in the coun system. The best way, furthcnnorc, to observe the court's \vorkings was to take •the bad man's perspective'. The background of Amerit'3n pragmatism hovers heavily over the writit1gs of Oliver \\'endell

Holmes, Jun. Interestingly enough, in v.•hat 1night be called poscanalyric philosoph)', especially the work of 1-lilary Putnam and Richard Rorty, the influence of the pragmatists, Peirce and James in particular, is quite evident and ackno,vledged. Reactions to Holn1es's legal realisn1 were n1any and varied. Philosophers in the natural law tradition in particular, sa'v Holrncs's view as abandoning me important n1oral questions regarding the nature of law. l"hcy brought f()rward the charge that crass expediency replaced the moral foundations of the legal system common to natural law justification. Strongly worded and biting criticisms forged an inrelJecruaJ chasm bet\ve.en the legal realists and che natural la\\r philosophers. In his 1956 Riverside Lecture. Professor Harry Jones from the Columbia lTnivcrsity La\v School Faculty attempted to reconcile the differences between the naturJI law advocates and the follo\vers of legal realisrn. lvlartin Golding once noted that Jones's lecture is notable for it4i restraint and even-handedness in treating the issul1i/or critical legal studies, and (2) feminist jurisprudence. The critical legal studies movemcnr suggests that the la\V is infused with, as ..\ndrc\v Altman has pur it, 'irresolvably opposed principles and ideals', which may indicate a deep level of contradiction. This suggcst'i, so the critical legal realists argue, that there exists in la\v a fundamental legal indeterminacy. This is opposed to D\\'Orkin's argwnent that in every 'hard case', a resolution is possible through an analysis of rights as determined by the moral principles fundamental to the society's constitution. 1\iloreover, critical legal studies theorist~ argue that \vhar D\\'orkin calls 'settled la\\'' is itself the result of political compromise. 'l"his co1npromise, so they argue, is in1possiblc to be considered as 'settled la,v' \vlth dercrn1inate moral principles. ·l"hc la\\', they suggesr, is a 'patch\\'ork quilt' of irreconcilably opposed ideologies. 21 Feminist legal theory generally is quite critical of \vhat is tcnncd 'liberal lcgalisrn'. '"rhis concept entails, so ic is argued, an acceptance of the 'separation thesis' and the endorsement of 'moral autonomy'. This criticism is part of the general critique of post-Enlightenment moral theory. Ho"rcvcr, Robin \\lest directs her critique against ,,,..hat she calls 'masculine jurisprudence' based on 'vhat she refers to as 'phenon1enological descriptions of the paradigrnatically male experience of the inevitability of separation of the self from the rest of the species, and indeed from the rest of the narural \\'Orld'. 22 1.his analysis seems ro suggest a cocxtcnsivcncs.c; of 'masculine jurisprudence' \\rith post-Enlightenment moral and political theory.

John Finnis: Revisionist Thomism ~1ost of the authors discussed above - d'Entrcves, Nlaritain, and Simon being the notable exceptions - while purportedly connected in some way \vith the natural la'v trc1dition, none the less have kept their theories at arm's length from Aquinas's account of narural la\\'. The t\vo philosophers of la\v to be considered next are less reticent about connecting their theories \vith Aristotle and Aquinas. Both John Finnis and Henry '\tcacch, \vhilc differing the111scl,,es in their ~'

Andrew :\Jtman, ~Legal Rcalisn1, Critical Legal SnJ(Jics, and Dworkin', Philo.,·ophl· and Public Affairs, 15/3 (1986), 220-2. :: Robin lVcs~ 'JurispruJence anntcmporary students of ethics to consider \a,·hat he referred co as 'the 'vav• of .>\ristotle', has influenced a \\'hole generation of philosophers to read Aristotle, and. as a consequence, .J\quinas, \\'ith a care and sophistication hcrond ,,·hat had

N11t11ral Lau1 and Conte111po1¥11) P/JilnsophJ'

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been custon1al)' in analytic philosophy. ~1aclntyrc's insistence that contemporary meta-ethics \Vas inteJlecrually bankrupt forced philosophers to exanune new approaches to meta-ethical discourse. He argues that British utilitarianism and Kantian fonnalisn1 have reached a dead-end street. He suggests that a rediscovery of Aristot-

elian virtue ethics will provide a much-needed rejuvenation in contemporary n1oral philllSOphy. After l/'i1111e literally spav.11cd a 'cottage industry' of philosophic-di bustle treating Aristotelian cthi~ \\~irh a new vigour. 31

In After Vi1111e, Macintyre argues that conccntporary ethical theories have reached an incellcctual impasse. ;\1orcovcr, ethical debate had, so he suggests, become ~interminable'. !'vlaclntyrc further argues that moral philosophy reached this impasse in the nvcnticth century because of the Enlightenment's decisive break with Aristotelian teleology. Lacking a concept of virtue, Maclnrrre suggests, post-Enlightenment ethical theory is inadequate theoretically and practically. 'rhc concept of virtue \Vas replaced by the concept of rule, especially as developed in Kantian formalism. Rules express a list of actions to be undertaken or to be avoided. \i'irtues emphasize a set of character traits to be acquired. The traits are connected with

the well-being of the person. A1oral questions directed ro~rards the dcvclopn1ent of the person and the attai1uncnt of \Vell-heing \Vere neglected if no1 avoided in the post-Enlightenment attempt to .iustify moral rules. Only a recovery of Aristotelian teleology and virn1e ethics will rescue the Western ethical tradition.

In a thoughtful analysis of recent work in Aristotelian ethical theory, Russell Hittingcr \\'rote the following account dealing \\•ith the influence lvtaclntyrc's work has had on contemporary philosophy: Macintyre has been a pioneer figure in "''hat I have clsc\\·hcrc referred to as che ~recoverist, movernenr: those \\'ho \\ish co retrieve, in \\'hole or in part, "rhat Alan Donagan has called rhe 'comn1on 1noraliry' of the \\'est. ~ 1 ~Jhc

range of journals in disparate tie Ids publishing re\•iews of After Virtue indicares che bre.-.dth of interest A·laclntyre•s book has sti1nulated. In chc five }rears follo\\·ing the publication of the fin."t edition, .-4fin· Virtltt was revie\ved in, among others.. che following .ioumals: ]1Jurn11/ of RcliKio11 . Co11tnnpo1·11ry Sociology, Hnn.wrd F.dut11tion11J RevirTJ.!, Q1111rterly Jl)Uma/ of Spttfh, P1111ism1 Rroiew, Conm1onwt11J, }~nl~ IAW Re;,riew, s~wannt! Reviev:, and '"ii/age J/oitt•; in -adtlirion reviews appeared in many philosophy J>ericKlicals. This list suggests the 'vidc nangc of readers A1aclnt}Tc's work on Aristocclk ian ethics has witnessed.

If nothing else, Maclnt}TC has 1nade dlis rccovcrist project profcssionallr respectable. Less than a decaods to be obtained. l~his is often called a 'thin' theory of good. Its opposite, a "thick' theory of good, normally depends upon atl ontological theory to flesh out che content of good. Dworkin, like many good-reasons philosophers, v.rould fit into v,.eatch's example of a philosopher adopting the method of the transcendental tum. For O\vorkin, the consistency of the argument is sufficient for accepting it. Even though Dworkin considers the moral principles of a society as basic to the justification of a lc!,ral theory, the moral principles thcmscl\'CS arc not justified by a further appeal to anything beyond consistency. Ra,vls holds a sirnilar theory. \r\lhat counts as 'the good life' on the good-reasons view of n1eta-ethics is the life 'vhich most satisfies one's preferences, \~'hatever these preferences might be. In his T/Je()ry of...7ustice, Ra,vls gives certain conditions vlhich must hold if prcfeienccs are to be justified. l~hc t\VO most important conditions are: ( 1) The preferences to be considered arc the hierarchically ordered ends in an individual's life-plan. These ends are chosen only after a process of deliberation in the light of a full kno,vledgc of different options and consequences of adopting them. (2) In Ra\\'ls's O\\'n 1

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Dworkin, 'Liberalism', 19 I.

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\Vords: 'Something is good only if it fits into \vays of life consistenc with the principles of right already on hand.' 11 Given this restriction, the \Vhites suggest that, according to Rawls, the 'good life• cannot include the life of a Nero or a Thrasymachus. The 'veil of ignorance' method by which Rawls determines his list of human righcs is another example of the 'good reasons' approach co 01oral and political methods. What one agrees to comrnit onc.~clf co in the 'veil of ignorance' and about which one reasons consistcnt1y and wills coherently are the necessary.' conditions for determining fundamental human right'i. Considering the itnplications of Ra\11ls's analysis, the Whites offer the foHowing observations connecting Ra,vls's suggestion of 'mature reflection' \vith the good-reasons approach adopted by Dworkin. They write: If Rawls's rcsaictions apply to Dworlcin•s theory then thc)r will both agree that D"'orkin's beer-drinking TV acldic.1 or Rawls's n1an \\'ho has a passion

for councing blades of grass in city squares n1ar each be living the good life, pro\rided that they have chosen these as their most in1porunt ends after mature reflection and provided that they are morall}r decent people. 1-:.

The Whites present the standard version of the good-reasons theory of justification. 'Ma cure reflection' undertaken by 'morally decent people' is a sufficient condition for adopting a particular life-plan or vie\v of the good. No substantive theory of the human person and \\'hat might count as perfective of that person is necessary. Consist-ency alone determines validity. Hence, this is a 'thin' theory of the good . This justification procedure eliminates any possible claim that there is a universally applicable content of the good life, no matrer how justified theoretically. Of course, the natural la\v position argues for some content necessary in making moral judgements. \iVhat Dworkin calls 'the liberal response' suggests that one cannot distinguish a 1nctaphysical justification from one's o\vn subjective though rationally c..X>hcrcnt preference. It is this kind of objection "'hich the naroral law theol)r must treat in some detail. A natural la\\' metacthics proposes some version of a 'thick theory' of human goodness based on the concept of a human person. This is opposed to the 'thin theory' adopted by good-reasons moralists such as Rawls and Dworkin. 11 12

John Rawls, cited in White, 'Education, Liberalism and Human Good'. Ibid. 149.

Rediscovery of Aquinas A radical illustration of the lack of content in the good-rc.."asons approach is Hare's example, in Freedo111 11nd Reason, of the 'moral fanatic ... According to Hare, if any person, including the mor.11 fanatic, \\·ills universally and thus consistently, then the person folJo,vs

the good-reasons methodology. l"'hc morJI funatic is a person \\'ho holds an immoral position and undertakes immoral actions and \\'ho can, by using Hare's rational method, justify this action. Follo,ving Kant. Hare demands chat a person, to act morally, must ""till rhc action consistently. l~his demands unjvcrsalizability. To be consistent requires, Hare suggescs, role reversibility. The moral agent must put himself or herself in the shoes of the other person. The sin1ilarity \vith the golden rule is apparent. For example. consider the case of a person adopting the principles of race supremacy. If che race supremacist \'{ere to \\rill consistently and universally. then, if the circun1stanccs ''rcrc reversible, the race supre1nacisc \\'Ould becon1e the object of bigotry, hatred, oppression, and discrimination. None the less, \\'hat if in \\illing universally, rhe race supren1acist accepted the fact that the bigoted ideology of race supremacy should prevail - even if it meant that che very race supren1acisr should suffer the cruelties of the victin1? This 'vould meet, it seems, the standards of Hare's rational consistenL):-. In other \vords, if the principles of the race supremacy \\rerc ''illed consistenrly - \\'hich includes the process of role reversal following universalizability - then this consistent ,,;Hing satisfies Hare's good-reasons the.ory. Put differently, the role reversal demanded bv universalizabilitv is met. The race supre1nacist is willing to suffer the results of the theory of race supremacy. Hare remarks that it is fortunate that there are few moral fanatics around in our daily u·orld. ""rhis example indicates, ho,,rcver. the lack of content in Hare's good-reasons approach to ethical theory, This 'vould be an example of a 'thin' theory of g0d. In 111any respects, \vhat the \.\·bites have suggested 1s similar scructurally to the criticisms Henrr \tearch proposed against the moral philosophers subscribing to the Enlightenment project. The good reasons philosophers depend upon the logical strucrurc of moral language and rhe consistency of moral argun1ents. ·rhe argu1ncnts against Hare ,s moral fanatic, for inst·ancc. depend on something n1ore than 'logic' and ~consistcnt..1'' alone. The strucrural anal,-sis of the development of recent analytic moral theory has prepared the \vay, as ic \Vere, for a reconsideration of ethical naturalisn1 in gcner~11 I

and the natural la\\' theory of ~·\ristotle and ~~quin.1s in particular.

Rediscovery of Aquinas

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By way of a brief summary, the analysis of the structural development of analytic moral theories undertaken so far in this chapter suggests several in1portant things. A1oore's naturalistic fallacy argument, which ruled out naturaJisn1 in meta-ethics, is based on a unique account of l\1oore's ontology of si1nplc properties. None the less, Moore's intuitionism, as developed in r11toloJ!J oj·.r.,.,10,.,llJ (f:,·ansron, Ill: Nonl1westcm trni\·crsity Press, 1971 ), 4.

Aquinas's Natural Law: A Reconstruction considers the following issues central to the mo~.11 theory in narural law:. The presuppositions of the theory ; 2. The structure of the argument; 3. 1'hc place of Aquinas's ethical naturalistn in contemporary meta-ethics; 1.

4. Some traditional objections and their responses to this form of ethical naturalism.

The completion of this kind of philosophical anal~s should ensure that studies in the history of philosophy, in meta-ethical naturalism, and in narural law .jurisprudence considering 1\quinas's theory of natural law \viii be better served. ..rhc result "rill inC~: (::nholic Univcrs,ity of 1\mc:ric:a Press, 1990:>. 101.

88 medieval philosophers, Aquinas adopted a modified correspondence theory of truth. 1\ relation of adt"qt111tio or 'proportion' holds between the concept and the thing. \\·1ten this rch1tion holds, a proposition is rn1c. \.\/'hilc there are different senses of ndeq1111tio, none the less in its simplest sense it expresses a version of the correspondence theory of tn1th. ildeq1u1tio is a relation of proportion obtairung bet\\'een the n1ind and reality. \.\then the relation holds bernreen proposition and thing, 'truth' holds.

i. J\.-101·a/ 'prope11ies' are bost"d 11po11 1lbpositio1111/ or tkt•e/op111e11tnl prnpe11ies: Follo"'ing Aristotle's suggestion in the 1'lifo111athean Etbics, ~.\quinas defined the 'good' in terms of an

*'end,. In rhc '"5111111110 Theologiae, I-fl, q. 94 a. 2, .~quinas \Vritcs thac 'good has the intelligibility of end and e\il has the intelligibility of contrary to end'. Follo\ving .l\ristorlc, .~quinas adopts the fourfolti thcorr of cause: material, formal, efficient, and final causality. From (4) above, it tollo,vs chat the final cause, in the case of a ten1poral essence, is the end of the development of the dispositional properties \\'hich 1nake up the formal cause. Of course, in the hylomorphic theory of Aquinas, the substantial forn1 is al\\'ars coru1ected \\•ith a •chu1ik' of prime n1atter. From (3) above it fllo~rs that only individual concrcta or primary substances as members of a natural kind exist.

8 . . .4 '111et11p/J..vsits oj"" 111tJr11l,--'

,:,~

possible: In a manner strangely akin

to but certainly not identical ,,;th Kant, Aquinas suggested that it is possible cognitively to unpack the ntecaphrsical issues \\·hich arc necessary for an elucidation of a moral theory. The result is a nonKantian *'metaphysics of morals'. Of course, i\qui11as's rnctaphysics is beyond the phenon1enal realn1 of Kantian epistemology. None the less both philosophers transcend the limits for n1eta-erhical discourse delintited by . the non-cognitivists. In ocher \vords, rationalitv is a category applicable to the moral sphere. One can develop moral arguments "rhich are justifiable rationally. It is important to note that . .\quinas's n1etaphysics is realist in nature and not transcendental. .~quinas adopts the epistemological principle that reality is kno\\'able. Aquinas rejects any form of Kantian noumena. h1etaphysical categories are realist in character and not n1cntal constructs. ~.\c1uinas does not adopt the 'transcendental tum, method \\·hich Henrv \leacch ascribes to much modern and conrcrnporary philosophy. In .~quinas's philosophy, the moral theory is dependent upon the metaphysical theOI)'· Ir is in this sense that Aquinas dl"vclops a 'metaphysics of morals'.

-

.

~

Aquinas's Natural Law: A Reconstruction 9. The ·rational (reaso11) takes theo1·etic11/ precetle11ct' over the affet1ive ('zvil/): In opposition co the dotninant F'ranciscan tradition in the thirteenth century, Aquinas arguc1 s cpistctnolof,'}', under the rubric of the exercise of theoretical reason. Finnis blurs, it appears, rhe distinction hcri.vecn thcorcric:al and practical reasoning because of his unique rnc:tho 11ota propositions central to his analysis of natural law theory. In /\lt1t11r11/ La-ce '111d .~11t11r11J Rights, Finnis argues that the number of basic goods has been firmly established: 'But I suggest that these other objective.~ and fonns of good begins b~, articulating a conceptual schen1a which then is used to interpret a particular state of affairs ....fhis n1odern method \\'as developed \Vith a vengeance by Kant. It has determined much contemporary jurisprudence anlicatcs his reconstruction of Aquinas's natural law. In opposition co this 1nodcm mctaphilosophy, Aristotle and Aquinas - and \Teatch and Vincent Cooke too - argue that metaphysics is possible. In t:hcir philosophical anthropologies, a discussion of essence as dispositional is significant cognitively... rhis ontology provides a theoretical ground in reality for moral judgen1ents independent of che canons of reason or objectivity characteristic of the Cartesian modern method. There can be no doubt that 1\ristotlc and Aquinas argue that metaphysics is pos..4iiblc. This becomes the backdrop of cheir n1cta-crhical naturalisn1, a thcon dependent upon this analysis of essence. · Tt should he clear no\\' \\'hy the argument of this book claims that

1

The Finnis Reconstruction meta-ethical questions, therefore, belong co a second order inquiry based upon the ontological content of a human essence. l"his second order meta-ethical inquiry based upon a dispositional account of essence is the 'core of good sense' which H. L. t\. Hart once suggested is central to natural la\v ethics. But it is the core beyond Hart's limits, and a core \\'hich, because of a metaphilosophical move common to modem philosophy, Finnis omits in his reconstruction of natural law moral theory.

7 The Veatch Rejoinder: Ontological Foundationalism

reductionist position clin1inating the dependence of n1etaphysics, especially a theory of essence, fron1 ..fhornas Aquinas's rhcory of natural la\\' requires a response. In particular, it is concerned \\1th unpacking the concepts central to the nloral rhcory of Henry\'earch. That \l'eatch \vill adopt a metaphysical realism structurally similar to chat of Aristorlc and Aquinas as an ontological underpi1uung for his naturalist meta-ethics, a position suggested in the preceding chapter, 'vill become apparent as this chapter develops. To help undcrstat1d the rnoral naturalis1n of Hcnrv• \!catch, I intend to tease out the concept'\ he has used as presuppositions and to indicate ho''' his method - his metaphilosophy - differs fron1 n1uch contcn1porar}" philosophical activity in anal}rtic ethical theory. \tcarch's n1ethod in approaching foundation questions in ethil"S differs radically from Finnis's metaphilosophy. The differing \\rars of approaching normative and fow1dational issues dctcnnincs the theorv• as elaborated and developed. ·1'0 begin '"ith, it is useful to recall Gustav Bergmann's suggestion that in understanding the works of a philosopher, 'there is a patten1' and one must discover the 'fe"' fundamental ontological it.leas' or principles from which the ,,·hole system Ho\\'S an', in his A First Gla11tt.> at St. Th0'11111s Aquin11s, suggests that 'modernity' is the proper name to rcter to Cartesian foundationalism. i\1clnemy argues that Aristotle - and Aquinas follo\\ring hin1 have structural ways ,.,·hich reject 'modernity' and its canons of rational consistency devoid of any ontological connection. \.'catch is in toral agreement. Quoting from his presidential address once again, Vcatch argued that 'the nonobjcc:tivc ch~tractcr of ethics is not rec16

Veatch, For An Ontology of Morals, 60-1n.6.

Veatch: Ontological Foundationalism

1 77

oncilab)e \\rith its rationaliry after all'. 1) In considering the role of good reaS(1ns in t\\'entieth-century analytic ethical theory, \rcatch raises the same question about rationality and foundationalism: Nevertheless, \\ har is interesting for our present purposes ~~bout this almost unanimous dercm1inarion on the part of n1ore recenr n1cca-ethicists to try to preserve a rational basis for our n1oraJ and crhical judgments is that it seems never to have occurred to them that if there \Vere to be a rational basis for ethics there would presumabl}r need to be an objective basis as well ... [The linguistic philosophers have) been at some pains to sho\\~ that there can be perfecdy good reasons for calling something good or right, even though neither goodness nor rightness is C\~er an objective fearure of the world. 18 1

"I'his is, Veatch suggests, an Aristotelian 11pori11. V catch stares chc aporia in the tallowing \vay: 'Ho\v could moral principles, to say nothing of ethical norms and standards generally, be at once nonobjective and at the same tin1e universal and necessa1y?' 1'' In other \vords, rationality demands an objective character to ethical judgements. The absence of an ontological foundation, Veatch argues, destroys the possibility for rational justification. Succinctly put, \Teatch seeks to find a foundation in reality for the tn1th of both metaphysical and moral tcrrns. In language used in Chapter 4, it appears that Vcatch needs metaphysical categories in order to establish regularity in nature. Nelson's S)nthetic a priori c..~usal connections in the exten1al \\'orld offer ontological insights on ho\v this requirement might be dctcnnincd in a realist metaphysics. More will be suggested about this reading of v,.eatch's theory later in this chapter. li\t a root mctaphilosophical level, Veatch is bothered about the realist foundation for the truth conditions of terms and propositions. 1 "his is where one of his main n1etaphilosophical principles enters: the Euth.,vpbro question . Veatch refers often in his works to this method of operating. Recall the question Socrates put to the young Euthyphro: 'Is something pious because it is loved by the gods, or is it loved by the gods because it is pious?' The former question leads to the transcendental tum - the god4i could ca-,ily determine for themselves what makes something pious. But the latter question 17 18

19

Veatch, Swimming Against the Current, 156. Ibid. 144--5. Ibid. I 56.

Veatch: Ontological Foundationalism indicates that there is something about the nature of the 'pious' which entails thar the gods indeed love it. '"rhis, \'eatch suggests, points to the need to have reasons reflect something about the nature of reality ...rhc transcendental turn, with its a priori elimination of any connection 'vith reality, a fottiori eliminates any possibility of answering the E·uth__yph,-o question. 1---he Eutbyph1·0 question is a ma.jor mecaphilosophical principle at work in the philosophy of Henry Vcarch. It indicates the necessity for having a realist, rational foundation for our language. Without this reaJist foundation, one cannot escape beyond the 11pori11 dependent upon the transcendencal-tum philosophers. V catch an A,-bitrio, 1, when he writes: 'If a people possess a sense of moderation and seriousness, and are very diligent about the common good, it is a good law for such a people to he able to choose their own magistrates through which a republic will he governed. I lo\\'cvcr, if, as time goes by, the same people become depraved so that they might sell their votes, and give their government to scoundrels and criminals, then they rightly have given up their power of electing to office, and ar this time the choice goes to a few good persons.'

\·Vhether hu1nan laY.' ought to alwars be changed something better is found

Arti,·k

i.:

"'hcn~vcr

I suggest that YlC consider '"·hat has been stated in the Detre111n1: llr is ridiculous and quite abominable that traditions which \\'C have received from long ago from our patriarchs ought to be changed.' ( 1 2. 5) The .)t11te1nent ef thr. Position: As I stated above (a. 1) in matters such as rhis. hu1nan law is to be considered as righdr changed in so far a5 ir provides for a change in the common good. However, it is the case that the Ve')~ change of laVt' itself, in so far as it is a change, is detrimental in a certain way to the common good. This happens because me observance of the law by me majority ought to be as a custont. I hold rhis because those things which go againsc common custom are seen in such a way that, even if the matters might be slight, they are judged to be grave. \Vhencc, ho\\rever, when a la\v is changed, the binding poY.'Cr of the law itself is diminishcdt because the rustom itself is abolished. Therefore, I suggest that no one ought to change a human law except for the very reason that the t'Onunon good is compensated regarding the extent to which harm nlighr be done in this specific instance. Indeed such compensation might arise either from this, that a \~cry grear and most evident utility comes about by means of the nc\\' starutc, or that d1ere is a great necessity, or that the existing law is eimcr ob,iously unjust or its observance is the cause of much hann. On mis n1attcr, the jurist, Ulpian, has said the followin~ 'In the 1naruter of establishing nc'v la\\·s~ one ought to consider the usefulness of the law in order that it might be seen that the la'Yf· which one is taking away "rill be as equall)' good' (Digest, I .4. 2 ). lfrtitk 1: \iVhether custom is able to have the force of law

I suggest that in considering this matter, \\'e read what :\ugustine said in his l.Ltter to lilst1lanttm: 'The customs of the people of God and the institutions put forward by our ancestors should be considered as law. Therefore, for

Appendix I: Texts of Aquinas on Law example, rhosc \\rho throw contempt at the di"ine laws also ought to be coerced as those who arc contemptuous of ecclesiastical customs' (36).

The Statnnent o_fthe Position: I argue that every lav,~ proceeds from rhc reason and the v.ill of the legislator. Indeed divine la\\' and natural la\v come from the rational wilJ of (rl:>d. However, human la\v comes from the \\'ill of a regulated human reason. For example, however, in matters of things to be done, reason and will are made evident by both 'vords and deeds. For thus it is the case that any person is seen to choose that v. hich is good in order that he 1night carry out a \vork. It is obvious. however, that through human speech, a law is able to be changed ~nd also co be expounded in so far as it brings forn·ar