“THE CONCEPT OF LAW," MARITAIN OBSERVES, "is an analogous concept." Its analogous characteristic relates to the great chain of law from human positive law, through natural law, through eternal law, into the very truth of God. Though each link in this "chain of law" is "law," there is an analogical relationship between them which must be grasped, or one will misunderstand the eternal law, the natural law, and one may sever necessary links in this great "chain of law" which follows the "chain of being."
The fundamental fact is that the law we are most familiar with is the written law of man, human positive law. So it is that human law that most clearly and familiarly fits into St. Thomas's definition of law. Law, says St. Thomas in his Summa Theologiae, "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." S. T. Iª-IIae q. 90 a. 4 co. (nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.) But human law is not the only law that exists, though it may be the law with which we are most familiar.
Maritain, 44. To maintain that human written law is the paradigmatic form of law would be a massive mistake, because the ideal, the paradigm of law is not human law, but the eternal law, and subsequent to that the natural law. The eternal law and the natural law--and not human law--are more fundamental and pure forms of law than human law. And there are huge distinctions between these laws, most notably in the knowledge of the law and the means of promulgation of that law.
Some of these differences are pointed out by Maritain. For example, the analogical character of law is illuminated in the notion of Eternal Law. Contrary to written law, the "Eternal law is not written upon paper; it is promulgated in the divine intellect and is known in itself solely to God and by those who see him in his essence." Maritain, 45. This means, of course, that contrary to human law, Eternal Law in its fullness is, at least in this life, unknown to us and unknowable by us by natural means. "The Eternal Law is as infinitely distant from written or human law as the divine essence is from created being." Maritain, 45. And yet, as rational creatures, were know "a certain reflection" of the Eternal Law insofar as we know the truth. "For all knowledge of truth is a sort of reflection of and participation in the Eternal Law, which is the unchangeable truth." Maritain, 45 (quoting S. T. Iª-IIae q. 93 a. 2 co. "Omnis enim cognitio veritatis est quaedam irradiatio et participatio legis aeternae, quae est veritas incommutabilis.")
This analogous character of law is also reflected in natural law, which is distinguished from human, written law by its unwritten nature and its means of promulgation. Natural law is defined thus:
Importantly, the order of reason concerned with is not the order of reason in nature separate and independent from God. The order of reason that is behind the natural law is that of the author of nature, God. That is why it is a huge mistake, a massive blunder, to separate God and the Eternal Law from the natural law, as was done in the 16th Century, most notably by the likes of Hugo Grotius (1583-1645) and his successors who took his cue. Grotius famously wrote that the natural law would remain valid, would bind, even if, one, in a most wicked proposition, assumed that God did not exist.** Thus the corpse of natural law should be obeyed, in Grotius's view, even though the head of the eternal law be lopped off. This was a "rationalistic deformation of the concept of Natural Law." Maritain, 46.
And, of course, this turned out to be horribly false argument. If the reason in the natural law is not divine reason, but nature's "reason" independent of God, then by what authority does an impersonal nature bind man? Nature cannot be presupposed, absent its creator, to be reasonable. Nature itself has thus no power to oblige. When thinkers, following Grotius's lead, severed God from nature, and concentrated "solely upon the order of nature--as deciphered by human reason--and did not perceive the relationship between the order of nature and the eternal reason," the enterprise was bound to fail. It was bound to fail because nature--bereft of eternal reason to give it its "ought"--is merely fact, merely is an "is," and there is no "ought" to be found in it. Thus severing the divine reason from nature naturally led to Hume's famous destruction of natural law without the eternal law, the so-called "Hume's Guillotine," or the "naturalistic fallacy," or the "Is-Ought problem."*** What Hume destroyed with his famous naturalistic fallacy argument was not a living natural law theory, but a natural law theory already decapitated by Hugo Grotius. Hume, who claimed to kill the natural law, was but stabbing a headless corpse and claiming victory, no real great feat of intellectual prowess. As Maritain summarizes it:
Maritain, 46. In short, if God does not exist, if the natural law does not involve divine reason, it is not law.**** It has no "ought," and only is an "is," and the atheist Hume is absolutely and totally correct in criticizing someone who jumps from a mere "is" to an "ought." And we are orphans without law. The laws would all be flat. And the exchange between More and Roper in Bolt's "A Man for All Seasons" may be heightened and paraphrased to its metaphysical proportions: "Oh? And when the last natural law was down, and the Devil turned 'round on you, where would you hide, Grotius and Hume, the laws all being flat?"
Indeed, where would we hide if there were no right, no law, no truth and only might makes right? A law without eternal law, without right, reason, or truth is an abomination of law, it is to make law an idol, to render law desolate. Then let those that are in Judaea, that is those faithful of Israel, flee into the mountains (cf. Matt. 24:16), let no one go into their homes or their fields, and woe for pregnant women and nursing mothers, for the law, and the human power that has usurped law, will have no mercy on private property, labor, and human life if it finds it inconvenient.
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*I have added the content in brackets for clarity.
**Hugonis Grotii, De jure belli et pacis libri tres (Oxford 1913) (reproduction of 1646 edition), Prolegomena: "Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus, quod summo scelere dari nequit, non esse Deum, aut non curari abe eo negotia humana." Translated, these famous words are: "And that which we have been saying would have a degree of validity even if we should dare to concede that which cannot be conceded without utmost wickedness, that there is no God."
***For a short discussion on this, see Ecstasis and Telos: David Hume and "Feelings, Nothing More Than Feelings . . . "
****The same should be said for "human rights." If these do not find their ultimate source in divine reason, in the eternal law, there is no reason except convenience for the strong to recognize them. Unmoored from the eternal law, human rights become unmoored from reason, and so we have people clamoring for such irrational, unnatural, and repugnant "rights" such as homosexual marriage or abortion.
The fundamental fact is that the law we are most familiar with is the written law of man, human positive law. So it is that human law that most clearly and familiarly fits into St. Thomas's definition of law. Law, says St. Thomas in his Summa Theologiae, "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." S. T. Iª-IIae q. 90 a. 4 co. (nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.) But human law is not the only law that exists, though it may be the law with which we are most familiar.
It should be noted . . . that the very word "law" risks being misunderstood because the most obvious and the most immediate notion that we have of law is that of written law or positive law: consequently, if we overlook the analogical character of the notion of law, we run the risk of conceiving Natural Law and every species of law after the pattern of law best known to us--the written law.
Maritain, 44. To maintain that human written law is the paradigmatic form of law would be a massive mistake, because the ideal, the paradigm of law is not human law, but the eternal law, and subsequent to that the natural law. The eternal law and the natural law--and not human law--are more fundamental and pure forms of law than human law. And there are huge distinctions between these laws, most notably in the knowledge of the law and the means of promulgation of that law.
Some of these differences are pointed out by Maritain. For example, the analogical character of law is illuminated in the notion of Eternal Law. Contrary to written law, the "Eternal law is not written upon paper; it is promulgated in the divine intellect and is known in itself solely to God and by those who see him in his essence." Maritain, 45. This means, of course, that contrary to human law, Eternal Law in its fullness is, at least in this life, unknown to us and unknowable by us by natural means. "The Eternal Law is as infinitely distant from written or human law as the divine essence is from created being." Maritain, 45. And yet, as rational creatures, were know "a certain reflection" of the Eternal Law insofar as we know the truth. "For all knowledge of truth is a sort of reflection of and participation in the Eternal Law, which is the unchangeable truth." Maritain, 45 (quoting S. T. Iª-IIae q. 93 a. 2 co. "Omnis enim cognitio veritatis est quaedam irradiatio et participatio legis aeternae, quae est veritas incommutabilis.")
This analogous character of law is also reflected in natural law, which is distinguished from human, written law by its unwritten nature and its means of promulgation. Natural law is defined thus:
Natural Law is an order [of reason] based in nature, or required appropriately by human nature, whose regulations are naturally known by man--naturally, which is to say, through the inclinations by means of which the rational creature participates in the divine [i.e., eternal] law.Maritain, 45.*
Importantly, the order of reason concerned with is not the order of reason in nature separate and independent from God. The order of reason that is behind the natural law is that of the author of nature, God. That is why it is a huge mistake, a massive blunder, to separate God and the Eternal Law from the natural law, as was done in the 16th Century, most notably by the likes of Hugo Grotius (1583-1645) and his successors who took his cue. Grotius famously wrote that the natural law would remain valid, would bind, even if, one, in a most wicked proposition, assumed that God did not exist.** Thus the corpse of natural law should be obeyed, in Grotius's view, even though the head of the eternal law be lopped off. This was a "rationalistic deformation of the concept of Natural Law." Maritain, 46.
And, of course, this turned out to be horribly false argument. If the reason in the natural law is not divine reason, but nature's "reason" independent of God, then by what authority does an impersonal nature bind man? Nature cannot be presupposed, absent its creator, to be reasonable. Nature itself has thus no power to oblige. When thinkers, following Grotius's lead, severed God from nature, and concentrated "solely upon the order of nature--as deciphered by human reason--and did not perceive the relationship between the order of nature and the eternal reason," the enterprise was bound to fail. It was bound to fail because nature--bereft of eternal reason to give it its "ought"--is merely fact, merely is an "is," and there is no "ought" to be found in it. Thus severing the divine reason from nature naturally led to Hume's famous destruction of natural law without the eternal law, the so-called "Hume's Guillotine," or the "naturalistic fallacy," or the "Is-Ought problem."*** What Hume destroyed with his famous naturalistic fallacy argument was not a living natural law theory, but a natural law theory already decapitated by Hugo Grotius. Hume, who claimed to kill the natural law, was but stabbing a headless corpse and claiming victory, no real great feat of intellectual prowess. As Maritain summarizes it:
Suppose, absurdly, that God does not exist and that nothing is changed in things [i.e., let us suppose everything remains as it is]: then, by hypothesis, nature would continue to exist, and consequently the normality of functioning of human nature; the requirements of the ideal order based upon the essence of man would likewise continue to exist. But a second question presents itself: is this order rational, is it wise, does it oblige me in conscience? Indeed, the only foundation for its rationality is the Eternal Law, the divine reason, and it is precisely this which Grotius did not perceive.
. . . .
[W]hy should I be obliged in conscience by a purely factual order? In reality if God does not exist, the Natural Law lacks obligatory power. If the Natural Law does not involve the divine reason, it is not law, and if it is not law, it does not oblige.
Maritain, 46. In short, if God does not exist, if the natural law does not involve divine reason, it is not law.**** It has no "ought," and only is an "is," and the atheist Hume is absolutely and totally correct in criticizing someone who jumps from a mere "is" to an "ought." And we are orphans without law. The laws would all be flat. And the exchange between More and Roper in Bolt's "A Man for All Seasons" may be heightened and paraphrased to its metaphysical proportions: "Oh? And when the last natural law was down, and the Devil turned 'round on you, where would you hide, Grotius and Hume, the laws all being flat?"
Indeed, where would we hide if there were no right, no law, no truth and only might makes right? A law without eternal law, without right, reason, or truth is an abomination of law, it is to make law an idol, to render law desolate. Then let those that are in Judaea, that is those faithful of Israel, flee into the mountains (cf. Matt. 24:16), let no one go into their homes or their fields, and woe for pregnant women and nursing mothers, for the law, and the human power that has usurped law, will have no mercy on private property, labor, and human life if it finds it inconvenient.
________________________________
*I have added the content in brackets for clarity.
**Hugonis Grotii, De jure belli et pacis libri tres (Oxford 1913) (reproduction of 1646 edition), Prolegomena: "Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus, quod summo scelere dari nequit, non esse Deum, aut non curari abe eo negotia humana." Translated, these famous words are: "And that which we have been saying would have a degree of validity even if we should dare to concede that which cannot be conceded without utmost wickedness, that there is no God."
***For a short discussion on this, see Ecstasis and Telos: David Hume and "Feelings, Nothing More Than Feelings . . . "
****The same should be said for "human rights." If these do not find their ultimate source in divine reason, in the eternal law, there is no reason except convenience for the strong to recognize them. Unmoored from the eternal law, human rights become unmoored from reason, and so we have people clamoring for such irrational, unnatural, and repugnant "rights" such as homosexual marriage or abortion.
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