Bourke, Vernon J.

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Two Approaches to Natural Law;Note

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Notre Dame Law SchoolNDLScholarshipNatural Law Forum1-1-1956Two Approaches to Natural Law;NoteVernon J. BourkeFollow this and additional works at: http://scholarship.law.nd.edu/nd_naturallaw_forumPart of the Law CommonsThis Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Natural Law Forum by an authorizedadministrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationBourke, Vernon J., "Two Approaches to Natural Law;Note" (1956). Natural Law Forum. Paper 8.http://scholarship.law.nd.edu/nd_naturallaw_forum/8NOTESTWO APPROACHES TO NATURAL LAWAll authors agree not concerning the definition of the natural law,who notwithstanding do very often make use of this term in theirwritings.THIS SENTENCE from Thomas Hobbesi was true when he wrote it and it is stilltrue. Natural law, as the term is used by moral, legal and social theorists, has awide variety of meanings. It is not the purpose of this note to detail the extentand history of these ambiguities, though such a study would have practical value.Rather, I should like to describe two contrasting attitudes toward natural law tosuggest that one is better than the other. In what follows, references to certainwriters in the history of philosophy are used for illustrative purposes only, not tocondemn or approve their theories, or to demonstrate my point by any appeal totheir authority. As a matter of historical fact, some of them (Hobbes is a goodexample) use both approaches. For the sake of clarity, let us call these ap-proaches A and B.In approach A, natural law is considered to be a set of rules or precepts con-veyed to man by immediate inspiration. This communication is frequentlythought to have a divine origin. Natural law thinkers who take this approachusually offer a definite list of precepts. Hobbes does so.2 Because it is brief, histhird law of nature may be cited as an example: it is simply, "that men performtheir covenants made." This is offered as the "fountain of justice" and is usedas the basis for an attack on Coke's "specious reasoning" in the Commentarieson Littleton.3Where does Hobbes, or any similar thinker, get such a precept of natural law?That the precept is not so simple and universally accepted as Hobbes thought, isevident to anyone who reads the ethical literature of Europe. From Kant andBentham onward, the most hotly disputed moral question has been that of theobligation to keep promises. People who list these precepts usually make someeffort to "deduce" them from one primary moral judgment. This judgment isconsidered to be naturally known. Early modem thinkers hasten to add thatthese rules are also promulgated in Holy Scripture, or by some other means of1. HOBBES, Philosophical Rudiments Concerning Government, in SELECTIONS 283 (Wood-bridge ed. 1930).2. See the parallel chapters from Leviathan and Philosophical Rudiments in Hons, op.cit. supra note 1, at 268-329.3. HOBBES, Op. cit. supra note 1, at 298.VERNON J. BOURKE 93divine inspiration. 4 Some thinkers, then, with theistic convictions are quite frankin admitting the immediate sources of their lists of rules of natural law. Catholicwriters often do this in much the same way that Hobbes does. Where religiousinspiration is weak or absent, as in the case of some contemporary British moral-ists, resort is made to an intuitive origin of basic moral judgments. In such casesit becomes more and more difficult to justify any code of laws for man's behavior.Another variant of approach A consists in the appeal to the condition of menin a "state of nature." Excellent examples of this procedure are found in someancient and mediaeval writers but we do not lack illustrations in English literature.John Locke, for instance, in common with many men of his period, supposed theAmerican Indians to be living in a state of nature.5 It was generally imaginedthat these happy savages actually lived without the burden of positive laws, inpeaceful obedience to the laws of nature. Rousseau's version of the theory iswell known. Some thought that no contemporaries were actually living in thiscondition but that, at some idyllic period in the history of man, there had beenpeople in a state of nature. All that is necessary, then, to discover the naturallaw is to divest ourselves of this hampering garment of man-made laws and tolisten to the voice of nature. The implication is that natural law is instinctivelyand immediately evident.For less romantic thinkers, approach A takes the form of innatism or aprioristicrationalism. In this version, the mind of man is thought to be endowed by naturewith a sense of duty, or even with certain initial rules of conduct. All of this isprior to sense experience. These innate promptings to moral goodness need onlybe developed in order to secure natural justice. While Kantian legal thinkingmakes little use of the term, natural law, it appears closely related to the attitudeof this approach.Doubtless there are many other variations of this way of getting to the naturallaw. The significant thing is that no advocate of approach A pays much atten-tion to the scientific study of nature, whether in man or in the world about him.The facts of human experience, the growth of human customs, the logic of com-peting moral and legal theories are but useless burdens to the man who alreadyknows, or thinks he knows, the rules of life by virtue of a special communication.Some of the theocratic thinkers in the American colonies were thus impatient ofman-made laws and legal theories, precisely because they claimed to find theirprecepts of civil justice in the Bible.A quite different attitude toward natural law is characteristic of approach B.Here, there is no claim of direct inspiration from God, though one may be con-vinced that God is the ultimate source of order and justice. Nor is there anyneed for reference to an actual or imaginary "state of nature." Neither innatenor intuited moral precepts are required for this approach. The central notionis that certain types of activity are appropriate, or inappropriate, to certain types4. Thus Hobbes ends chapter three of the Philosophical Rudiments: "the laws of nature...are not in propriety of speech laws, as they proceed from nature. Yet, as they are deliveredby God in holy Scriptures, as we shall see in the chapter following, they are most properlycalled by the name of laws. For the sacred Scripture is the speech of God commanding overall things by greatest right." (Op. cit. supra note 1, at 329.)5. LocKE, Treatise of Civil Government, in SELECTIONS 62-80 (Lamprecht ed. 1928).NATURAL LAW FORUMof agents under given circumstances. This approach is evident in the practicalthinking of some of the classic Greek philosophers, though we are not required tothink that they exhausted its possibilities. Socrates, Plato, and Aristotle figurein its history, as do the Stoics. They felt that man, as a reasoning animal, couldact in ways not open to the irrational brute. They judged that some activitiesquite natural to brutes were not to be performed by men. They indicated theimportance of the surrounding circumstances of human action and analyzed theconditions of voluntariness.It is certainly not necessary to this approach to say, with Plato, that humannature is a really existing and unchanging essence. Such extreme realism wasrejected by Aristotle. Indeed, if such a human nature were actually present ineach man, it would be difficult to explain why men do not always act in con-formity with it. And if they did, there would seem to be little need to legislate orto theorize on the nature of laws. The laws of such a human "nature" would beobeyed as automatically as the laws of physics. Greek necessitarianism is foreignto approach B.On the other hand, I do not think it possible to develop a theory of naturallaw on a purely nominalistic basis. It is true that individual things are the onlyexistents; universal essences do not exist. Men differ as individuals but theyresemble each other more than they do dogs or trees or stones. There are observ-able types of beings. It is possible to distinguish different types of actions. Thisis what makes it possible to formulate laws, for a law always has some generalityto it. It is a statement that a certain type of action is suitable, or unsuitable, toa certain type of agent, under certain typical conditions.Again, in approach B, nature refers not merely to the nature of man but alsoto the natures of other things with which, and in regard to which, men may actfreely. One of the features common to individual men (and not to dogs, treesor stones) is an ability to understand a general rule and to conform to it in certainsituations only. Such conformity is not automatic, wholly predetermined by ante-cedent conditions, as it appears to be in subhuman agents. Certain of men'sactions, such as the natural processes of digestion, are naturally and physicallypredetermined, as they are in other animals. It is nonsense to enact humanlegislation to govern such events. Other actions of men, such as walking, maybe voluntary. They are not wholly predetermined. These voluntary actionsare governable by general precepts or laws. Yet the striking thing about suchlaws of voluntary activity is not that they must be obeyed but that they maybe disobeyed.Approach B endeavors to discover such laws by studying the specific type ofagent that man is, and by attending to the circumstances under which men per-form voluntary actions. The more general the expression of such law, the less at-tention does it pay to circumstances. In its maximum generalization all circum-stantial conditions would be omitted. The old formula, good should be done, evilavoided, is a rule devoid of special conditions. Such a rule is not immediatelypractical: no one can go out and just do good. More practical precepts arereached by observing and stating the actual conditions of voluntary action. Sucha process is not an analytical deduction from the formula stated above. Onlyexperience can lead to the discovery of what is good action in the concrete. How-VERNON J. BOURKE 95ever, crude experience is not enough to suggest immediately the patterns of rightconduct in voluntary activity. Some hard thinking must be done. There is nosubstitute for practical reasoning, either in moralizing or in legislating.Hence, this approach to law is both empirical and rational. Without experi-ence, we know nothing of the nature of human agents, human actions and theircircumstances. Experience covers not only ordinary sense perceptions but also thefindings of the various sciences. Of course the social sciences are importantsources of information for the legal thinker and the moralist.6 But, since manmay perform voluntary actions modifiable by any parts of the universe, all thespecial sciences (biology, physics, chemistry, mathematics, and so on) are sourcesof significant and practical information. Whatever can be discovered about thenature of things is pertinent to the regulation of human conduct.This is not to say that everything said by scientists is to be accepted at facevalue. Some scientific reports convey actual information about observed thingsor events. These are something like the "first-order facts" mentioned by ProfessorNorthrop.7 Such information is very useful to one who is concerned with thelaws of human conduct. Other things said by scientists are generalizations andinterpretations of certain data. These are also of* practical utility. Still otherthings said by scientists are highly personal conclusions, even guesses, hypotheticalconstructs and deliberate overemphases of partial data. These statements of thethird type (which appear to me to abound in some of the social sciences) havenot the same practical status as the hard facts of experience.Thus, if a scientist reports that in studying a hundred cases of disrupted per-sonality he has found evidence of sexual aberration in each and all, this is morallyand legally significant. If he further reports that all psychological abnormalityis due to sexual peculiarity, this opinion is not of the same practical value. It isnot easy to distinguish what is sound and what is unsound in a scientific report.This simply underlines the point made earlier: there is no easy substitute, in juris-prudence or in morals, for hard thinking. Science does not absolve practicalthinkers from their obligation to make a rational appraisal of the relation of pro-jected patterns of activity to the nature of the human agent and to the surround-ing conditions of that activity. Any method or theory which suggests that it willgive ready-made answers, without much need for practical thinking, is suspect.It is evident that my preference is for approach B. I do not reject A becauseit appeals to divine law. My criticism of it centers on its claim to short-cut expe-rience and reasoning by appealing to some sort of direct and immediate grasp ofnatural law. This appears to be but a travesty on natural law thinking. It iswith some hesitation that I conclude by suggesting that approach B is Thomistic.My hesitation is solely due to my fear that I may be misunderstood by non-Thomists. I do not mean to say that one must call himself a Thomist in orderto develop a legal theory along the lines of approach B. At least I should liketo go on record as thinking that Thomism is not to be identified with approach A.True, St. Thomas speaks of natural law as a "participation" in the divine law.6. See the interesting and, I think, tenable exposition of the relation of sociological juris-prudence to natural law jurisprudence in Northrop, Ethical Relativism in the Light ofRecent Legal Science, 52 JOURNAL OF Pxs.osoPHy 651-662 (1955).7. Northrop, supra note 6, at 657.96 NATURAL LAW FORUMYet I have the strong conviction that this participation does not mean a privilegedcommunication, coming directly by divine inspiration, but rather the process ofworking out rules of human behavior from the data of human experience, usingthe ordinary rules of logic and scientific method. Such procedure is a naturalapproach to law, moral or civil, because its data are the presentations of naturalexperience, its method is as natural as any other type of .practical reasoning, andits results are as good as the admittedly imperfect nature of the human mindpermit.VERNON J. BouRKE

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Two Approaches to Natural Law;Note

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