See our websites!

"It is through conscience that human beings see and recognize the demands of the divine law. They are bound to follow their conscience faithfully in everything they do."
VATICAN II
Religious Liberty, no 2.


THE LAW OF CHRIST
General Moral Theology. Vol.1

published by The Mercier Press, 1961, Cork. Ireland. pp 238-250

by Bernard Häring, C.SS.R

3. Natural Moral Law and Natural Rights

a. Distinction between Moral Law and Right

Bernard HaringNatural right is a segment or an aspect of the natural moral law. The moral law embraces all that is good (morality in general); natural right (right as such) is concerned with that which is just (justice), the juridical order between man and man, between group and individual, between community and community.

Morality (the good) cannot be produced by force because it is rooted essentially in man’s inner disposition. The spirit is not subject to force. But right can be enforced. However, the performance under such constraint is surely imperfect unless it is animated by the spirit of good will. Example: Children may be made to support their needy parents, for parents in need have an enforceable right to such material help under certain conditions, but the proper spiritual attitude of children toward parents (filial piety) is not enforceable.

The object of right is the common welfare. But the common welfare includes also a very extensive domain which is concerned with the protection and nurture of individual welfare. And this includes above all the creation of an external moral climate which makes it possible for the individual and the group to attain the moral religious ideal. Right must therefore serve not only naked justice, but morality as such, though always with a view toward justice.

We said that natural right is a portion of the natural moral law. This statement rests on the presumption that right and morality belong together. For duties correspond to rights. Where there is no duty, there is no genuine right. But duty (morality) is more extensive than right, because, as we noted above, right is only one aspect of moral obligation.

b. Historical Survey

The natural moral law is found among all peoples as a reality of experience, and not least of all among the primitive tribes, though, of course, not in a theoretic philosophical form explaining the moral law or natural rights. For almost universally, and principally among the primitive peoples, the natural moral law is not based so much on the nature of man as upon religious traditions through which God made known His will (often through the “patriarch”).6 Only in periods in which the unreflecting religious consciousness is in a state of decline or decadence does the need appear for philosophical explanation of the content and authority of the moral law (let us say through the rational nature). Here we naturally make no point of denying that rational nature itself, through the order of creation, enlightens the individual with a knowledge of the fundamental demands of morality. But in the primitive peoples all things were seen immediately in the light of religion on the level of the person.

The problems of natural moral law particularly in its bearing on natural right were much discussed among the Greeks. Undoubtedly Aristotle and Plato overemphasize the authority of the state in its positive legislation by contrast with the rights of nature. Nor is the latter clearly grasped by these thinkers as a mere portion of the more comprehensive natural moral law. Of course they do recognize the existence of good and bad laws. Yet they do not acknowledge the right of the citizen to invoke natural right in opposition to the positive law (as the ancient Sophists did). But they clearly teach that there is a natural moral law which binds man even where there is no state legislation. Aristotle seeks the norms of the good in the being of things (above all, in the nature of man). Good is for him that which conforms to the order of being, but it is also that which is reasonable, since the good can lay claim to validity and oblige man only through the medium of reason. In conformity with his theory of knowledge, Plato propounds the doctrine of innate moral ideas. He finds the good not in real being, but in the “pure” region of ideas. The two principal orientations in Christian philosophy even in the conception of the natural moral law, as found in Augustine and Thomas, derive in great part from these two Greek philosophers.

The Augustinian-Platonic conception views the natural moral law more under the aspect of reason through its participation in the eternal law of God by means of divine illumination of ideas. The more mature Thomas and the whole Aristotelian tendency rather stress the order of creation and its knowability in relation to their claim on our conscience. In both Greek philosophies and still more clearly in the corresponding Christian orientations the natural moral law is held to express itself, not merely through the intellect, but also through man’s inclination toward the good.

In classical Greek philosophy the theory of the natural moral law and natural right was impoverished through the notion of the total subordination of the individual to the state, which was viewed as the ultimate source of all valid laws. To obey the state was held as invariably good. By way of opposition the Sophists applied their critique to point out the contradiction and variability in the state laws themselves. Such criticism of the laws as they actually were, contributed toward a concept of worldwide natural right. The Stoa substituted a supra state with world-wide natural right for the right of each petty state. It finds in human dignity (even in that of slaves) an element common to all places and all peoples. It bases the universal validity and immutability of moral duties on the world order (cosmos), on the rational world soul, and on the rational nature of man, who is capable of recognizing the laws of the world-order through participation in world reason.

Among the Romans the notion of the rights of nature was a result of the comparison of the rights of the Roman citizens (jus civile) with the common rights of all the vanquished people (jus gentium). There was only a short step from a knowledge of this common right of peoples, gleaned through such comparisons and constantly applied, to the realization that in the nature of man and of peoples there is an existing natural basis for the positive right, namely, the natural right (jus naturale). The doctrine of natural right not only plays an important role in the Roman philosophy of right, but also in the Roman jurisprudence. In difficult cases, if the written law was not adequate or was deemed inapplicable, the Roman judge was permitted to apply the principles of the teaching on natural law.

The doctrine of natural right (prior to every civil right) and of the natural moral law (also abstracting from every positive revelation of God and certainly without respect to human law) is a very definite part of the Christian tradition. Only with the growth of Nominalism and the arbitrary rule of the absolute monarchs in the late Middle Ages was this clear tradition somewhat obscured. Because of his Nominalistic bias in philosophy and theology, Luther had no true concept of the natural law, though there is much dispute about his actual position. His doctrine of total depravity of fallen man and his concept of “reason the harlot” leave no room for any concept of revelation except a purely positivistic one. In the climate of Lutheranism, once faith declined, absolutistic juridical positivism had few obstacles to prevent its rise and spread.

With the rapid, and progressive deterioration of faith in revealed morality at the dawn of the modern age, Catholics and Protestants (Calvinists) immediately began an earnest search for a common ground in the natural moral law and in natural right. The freethinkers of the period also manifested a serious interest. Among the most noted scholars in the field of natural right are Grotius (died in 1645) and Pufendorf (died in 1694), both of whom were influenced by Vitoria and Suarez.

In this period the doctrine of natural right was avidly embraced by the advocates of Rationalism, who with sceptical optimism relied on human reason alone for the certain knowledge of all that is good. With genuine naivete the rationalists argued from the general principles of natural right and deduced the most specific obligations, with the result that every teacher of natural right in the declining eighteenth century was able to produce a perfect code of laws based on the doctrine of pure natural right. Variations due to conditions of place and time were scarcely noticed. Moreover, as expounded in non-Catholic circles, the doctrine of natural right revealed strong individualistic tendencies down to the beginning of the current century. All rights of the state were held to derive from the rights of the individual. There was no recognition of the community as autonomous subject or bearer of rights.

In reaction against this rationalistic attitude Romanticism subjected the egalitarianism of rationalism to a sharp critique. The criticism of the enervated “natural right” of rationalism with its disregard of the manifold diversity of peoples, was frequently perverted into an attack on natural right itself in non-Catholic circles. On the contrary, the Catholic thinkers were able to penetrate more profoundly into the doctrine of human conduct, both from the standpoint of historic development and background and from philosophic analysis of nature itself.

The climax is reached in the juridical positivism of the nineteenth century, which derives all right from the absolute and all-powerful will of the state. “There is no right unless it is granted through enactment of law.” The ultimate consequence of this position is the dictum: “What the Leader commands is always right.” Of what avail is recourse to his individual conscience conceded to the subject by many juridical positivists in instances in which the positive right of legislation leads to egregious injustice? In fact, the positivists have no fixed norm of right and duty binding every conscience uniformly and universally. Such is the result of the Lutheran despair of reason once the safeguards of faith have been forfeited.

Abstracting altogether from the Lutheran lack of esteem for natural right, there is an inner necessity in the very development of events in the last three centuries. When he forsook his ancestral Christian home, the “freethinker” brought with him a rich Christian heritage of religious and moral truth. Even after the light of faith had been extinguished, he still cherished the treasure of truths which were the Christian inheritance, though in the vanity of his egotistical reason, of course, he vaunted them as an exclusive possession of his own mind. Even after God was rejected, or, more specifically, after the arguments for His existence were repudiated, the basic moral principles which are deduced from the existence of God became obscured in his mind only gradually. Now, after the entire heritage of the Christian past has been squandered, only one alternative remains. Either the prodigal must return to the Father’s house or he must eke out a miserable existence on the husks of scepticism and moral juridical positivism.

From this situation Protestants conclude in part that in our dialogue with the contemporary mind we should not attempt to withdraw to the common ground of natural law and right—and we might note that such a procedure has a very hazardous foundation in their principles—but that as Christians we should always and everywhere proclaim the uncompromising challenge of obedience to faith. Indeed we Catholics will proclaim the need for obedience to the faith of the Gospel and demand it of all the world without qualification or quibble. But is there any reason for us to abandon beforehand what reason teaches us about the rights and duties of all men, a common meeting ground of naturally knowable duties and rights which we share with many non-Catholic Christians? How can we preach the divine truth of the Church and expect of men obedience of faith toward the Gospel, if we cannot have confidence in their natural knowledge of the most fundamental moral duties and rights?

Of course, we may not carry optimism so far as to expect from non-christians or even from atheists the knowledge and recognition of all naturally knowable duties and rights. For the apostasy from faith in Christ and the denial of belief in God carried with it an ever-increasing weakness of the intellect of fallen man in his natural understanding of morality and right.

Since the Church has been obliged to co-exist in an organized unbelieving world, in a milieu of unbelieving states, her doctrine on the natural moral law and natural right has taken on still greater practical significance. Leo XIII is one of the most important Catholic teachers of natural right in his encyclicals on the social order and the state. His work was continued particularly by Pius XI and Pius XII. They were keenly aware that only through the exposition of the naturally knowable moral laws and principles of right could they gain a hearing also in the non-Christian world, and in this way cooperate with all men of good will. Moreover, the enunciation of the doctrine on natural rights belongs to the exercise of the Church’s pastoral magisterium over all mankind and flows from her responsibility toward the order of earthly realities. In part her very mission rests upon her proclamation of the natural law. And it forms a significant part of her message to all peoples. She is fully aware, when she is confronted by errors in the natural religious order of truth, that she herself enjoys infallible certainty in this domain of truth only in virtue of divine revelation and guidance.

The horror aroused over the arrogant assumption of “rights” by certain modern states in defiance of every moral ideal seems to favor the Catholic doctrine on natural rights. The proclamation and sanctioning of universal human rights by the United Nations surely points in this direction, even though it may well be that many representatives of the signatory powers were convinced that their resolutions were creating new rights rather than enforcing already existing ones. For a long time celebrated political theorists with a socialistic and liberalistic bias proved utterly intransigent regarding the authority of states in the matter of the rights of parents in the education of their children, if we may cite just one example of disdain for individual human rights. Any such rights of parents, they claimed, had their origin and basis in the legislation of the state. And therefore they maintained that they could also be restricted at will by the same authority. This attitude is less prevalent today.

c. The Scriptures and the Natural Moral Law

The words of Deuteronomy, “This commandment, that I command thee this day is not above thee . . . but the word is very nigh unto thee, in thy mouth and in thy heart, that thou mayest do it” (30:11, 14), are probably an indication that the law conforms to reason and is naturally knowable. In any case, the content of the second table of the decalog does not transcend the law of nature. More profound reflection on the knowability of the good also on the part of the Gentiles is found in the sapiential books. When Christ asks, “Why even of yourselves do you not judge what is right?” (Lk 12:57), He points to moral knowledge and power of judgment. Very clearly Saint Paul (Rom 2:14f. and 1:32) teaches that the law of nature is revelation of the Creator, which is written in the rational nature, in the heart even of the Gentiles, and which accuses man of his evil conduct in his conscience and deprives him of any excuse for it. In his preaching to the Christians the natural revelation in the created world and the rational nature of man are always presupposed. But the fulness and perfection of revealed truth and grace is Christ. The actual basis and motivation for the law according to Paul is this fulness of truth and grace.

d. Certainty and Error regarding Natural Law

The fundamental principles of the natural law can be known with certainty by every normal man in possession of his reason. They are in fact self-evident. Following is the most universal principle of the natural law: the known good must be done (bonum est faciendum: Thomas); the good must be loved (de bono est complacendum: Scotus). Likewise the following principles are evident to all peoples and have been actually recognized by all men: “What you do not wish others to do to you, do not do to them!” (cf. To 4:16); “Leave to every one or give to every one what is his!” The laws of nature evident to all men include at least the general precept to honor God and the essentials of the second table of the decalog.

Ignorance of the most immediate conclusions and applications of these laws of nature cannot very readily be excused. Such ignorance can hardly be inculpable. On the other hand, anyone who is living in morally debased surroundings, especially if he does not enjoy the enlightenment and guidance of faith, can readily be led astray regarding the more remote conclusions of the law of nature, though the conclusions in themselves are entirely within the reach of unaided reason. In a general way the cause must be put down as the disorder of original sin, but more particularly it is the influence of the surroundings and the limitations of talent and moral sensitivity of the individual.

One cannot be ignorant of the duties which immediately spring from the state of life one has himself chosen (for example, in married life there is the obligation to care for and educate one’s children) or from one’s vocation (for example, a superior by virtue of his office must care for his subjects) without the onus of guilt. But one may fail to have a clear understanding of the manner and means of the fulfillment of such duties, or of the more remote consequences of the essentials involved in the state of life or vocation (for example, the obligation on the part of parents to bequeath a suitable inheritance to their children) without incurring guilt.

e. Immutability of the Natural Law

As such, the moral law of nature is immutably valid. But its application is variable according to the changeableness of conditions. For example, it is an immutable principle of natural right that every man has the right to his dignity as man and to the development of his personal capacities He has these rights also in regard to his work. From this applied principle we may draw the further conclusion that actual slavery is unlawful at any time. Saint Paul implies as much in his prescription regarding the treatment of the slave “as a brother” (Phlm 16). But an immediate emancipation of the slaves and a subversion of the whole social structure would have placed the human dignity of the emancipated slaves in even greater jeopardy. Similarly, from the principle of the dignity of man we deduce certain conclusions regarding the inalienable rights of the serf or vassal in relation to his feudal lord in the feudal system, though we can in no wise prove his total independence, because this would have made defense and administration, the duty of the feudal lord, impossible of fulfillment. In consequence the emancipated serf could not have enjoyed that peaceful existence and opportunity to work to which he had the right.

From this same title of natural right to human dignity we conclude to a conditioned right of co-management for the worker in present-day industry because it offers to the working class in this age of propertyless masses and mass production in industry the only assurance of preserving industrial peace and the dignity and integrity of personality of the workman. The problem has not yet fully crystallized and requires much more study and research. However, the assumption of an absolute right of co-management for every laborer is untenable, for this would practically make the wage contract immoral. It is entirely untenable to assume that the right to co-management is based on natural right itself for labor as a whole, on the hypothesis of an essential claim based on man’s nature as such and valid for all times and all circumstances. We can surely conceive of an eventual social reform so comprehensive that extensive participation in ownership by the working classes would vitiate all the arguments advanced for co-management today. The very discussion regarding right of co-management may have already contributed much to the current clearer realization of the importance of the historical context in the application of immutable principles.

Today we see clearly that the eternally valid propositions of natural right also include the duty of acting in accord with historic exigencies and situations. Man must act rightly in the historic context, though it cannot be rigidly and statistically determined for all times what is historically correct and right. Only the knowledge of the immutably valid essential laws of natural right and of the historic situation makes it possible to form a judgment in every individual instance as to what is “historically right” and therefore also, in the full sense, “right according to nature.”

In the application of the law of nature there can be no epiky in the true sense, provided epiky is construed as a meaningful fulfillment of law or an application of law which transcends the mere letter. For the moral law of nature and natural right is not at all a “law of the letter,” but an unformulated law and right resting in and ever to be read anew from nature itself in its permanence and changing historical conditions. Obviously, the most universal formulations are always correct in formulation also, though a knowledge of the variable conditions is necessary. To cite an example based on the principle “to each one his own,” only from a knowledge of conditions can one determine what “his own” means for the individual. The application of a universal principle of natural right demands the virtue of equity (aequitas), the just and at the same time prudent “sense of the situation,” as a basis and premise for a naturally just and historically right action and particular conclusion.

As objections to the doctrine of the immutability of natural right certain facts are adduced from the Old Testament which apparently contradict the principle: the sacrifice of Isaac (Gn 22:1ff.), the command to extirpate the Canaanites (Dt 7:2),7 the spoliation of the Egyptians by the Israelites in their flight (Ex 12:35f.). This latter can very readily be explained as justifiable compensation for unpaid forced labor. The other two facts are not in violation of the fifth commandment (natural law) which forbids the taking of the life of an innocent person on one’s own authority. The meaning of the commandment is that not man, but God alone, is the absolute master over life and death. Therefore, as God acts through the forces of nature, so also can He act through the human instruments He chooses in the exercise of His exclusive right. He can and may set the term of an innocent man’s life, which may be the greatest of graces rather than an evil. God could demand the sacrifice of Isaac as a victim through an authentic revelation. As a matter of fact, Isaac was not sacrificed, though the obedient journey of sacrifice made of Abraham and Isaac types of Christ’s dolorous way to the sacrifice of Calvary. Such was the design, such the grace of God. The primitive inhabitants of Canaan had forfeited their right to national existence because of their vices and their polytheism. Their idolatry proved a constant source of temptation to the Israelites.

A closer study of the matter from the standpoint of Scriptural exegesis shows that God entered into the covenant with the Israelites as they actually were historically, with their national virtues and faults as influenced by their environment. Only the customs, laws, and defects which were absolutely incompatible with their position as people of the covenant and with its providential mission would God have to eliminate. The imperfect national institutions prevalent up to the time of the covenant became “religious” institutions upon entry into the covenant with God that is, divinely sanctioned institutions of the Chosen People, by means of which the divine pedagogy only gradually purified its crude concepts and morals.

As regards the legislation of Israel, we are not to think of all its prescriptions as emanating immediately from God. As to content and substance, the civil laws of Israel were not immediately revealed to Moses, but were taken into the orbit of revelation through the enactment of the covenant. The Israelites who fell away from the people (the theocracy) by gross transgressions of the tribal law, by the same token apostatized from the covenant. Much of the evil conduct of the patriarchs (lies, deceit, impurity) is merely reported without comment and hence is not at all approved by the sacred writer. In fact, the absolutely unfathomable mystery of predestination to grace and the divine governance through grace is discerned more clearly when thrown against a background which is frequently dismal and sombre.

f. Is Dispensation from Natural Law Possible?

In the true sense of the word there is no dispensation from the natural moral law, nor can there be.8 But in its application a law or right of our nature can be robbed of its binding force through a change of nature (hence, not through mere variation of external circumstances!). We know from revelation that original sin had a most dire effect on all mankind. Because of this sin and its evil effects throughout the history of mankind, human nature by comparison with the “nature” of original justice, and probably also by comparison with “pure nature,” has deteriorated. In consequence, with the forces at his disposal and without the grace of Redemption, fallen man could not observe all the precepts according to the lofty moral standard which man in his primitive integrity was able to keep. This fact sheds some light on the toleration of polygamy and the bill of divorce in the Old Testament and in some measure explains what seems a toleration of evil. But it must not be thought that unrestricted polygamy, as practiced by Solomon, for example (cf. Dt 17:17) or the callous and unjust issuance of a bill of divorce, is reported by the inspired writer as free from guilt or even as ideal.

In the study and discussion of the Old Testament law and morality we must attempt to distinguish more sharply than we usually do between the norms of law (juridical law) and moral ideals. Divorce is never approved as a moral ideal in the Old Testament. There is a simple command (Dt 24:lff.) not to dismiss the wife without a bill of divorce and not to resume married life with her after her dismissal and remarriage. This was plainly a restriction placed on free and easy divorce. The bill of divorcement is regulated as a legal form, but divorce itself is not inculcated as something morally irreproachable. “Moses, by reason of the hardness of your heart, permitted you to put away your wives” (Mt 19:8). This is to say that, assuming the moral immaturity of his subjects, the lawgiver could tolerate many moral imperfections, in fact, even moral abuses and place legal checks on them in order to avoid greater moral evil. Saint Thomas is of the opinion that the objective of the juridical regulation of the bill of divorce by Moses was to save the lives of many wives who might have been exposed to great peril had there been no such legal restrictions. Succinctly he states his conclusions regarding the problem of Old Testament law on divorce in the lapidary pronouncement: “Therefore the lesser evil was tolerated to avoid a greater evil.”9

However, it should not be overlooked that so great an authority as Pope Innocent III,10 and with him many other theological writers, hold that there was a direct divine revelation which “permitted the patriarchs to have more wives than one.” But the Pope says nothing regarding the form and manner of the revealed message. Nor is his teaching an infallible doctrinal decision nor even so much as an authoritative pronouncement on this point specifically. It is rather an incidental statement in a letter of the pontiff dealing with the marriage of pagans and the Pauline privilege.

Any solution of this problem of divorce and polygamy which is based on the assumption of divine authorization of the practices as an actual moral regulation of Jewish conduct must stress the distinction between the primary and secondary principles of natural law. That part of the natural law can be considered secondary and within the area of divine dispensation which is most suitable indeed to fallen and unredeemed nature, but not as such obviously and unconditionally binding and within the reach of man’s power. In consequence, an exemption from it is not altogether excluded in view of the abject condition of falien man. An inclusive or indirect toleration, or even a direct toleration of what this portion of the law forbids, may be granted because of fallen man’s “hardness of heart.” But only God through his instruments of revelation can grant such a direct “permission” or toleration.

There is another solution which approaches the problem from the standpoint of mere juridical toleration through judicial norms. But this explanation also must have recourse in some manner to a divine revelation, since the legal system of Israel attained the status of “divine right” through revelation. Essential to both attempts to solve the perplexing problem is the reference to the disturbance of the original order of the Creator through the hardened heart of man. This fallen condition of man is the basic reason for permitting a norm less exalted than the perfection of the law of nature would impose.

In this connection it is well to note that at all times students of moral right have had to face the thorny problem of toleration of evil. Is legal toleration and “regulation” of moral abuses permitted? Is it perhaps even more prudent than absolute prohibition which might result in even greater evils because of the malice of many individuals? Thus, since the days of Augustine, many learned theologians have held that a legal regulation and with it also a species of public “toleration” of “legalized” prostitution under certain circumstances is lawful, provided it does not imply formal approval of this degrading vice and result in a multiplication of sins. Similarly Christian politicians and jurists may cooperate in a legal regulation of civil divorce. But it is permitted only on condition that the circumstances do not favor a more rapid spread of the evil of divorce and the legal cooperation clearly does not imply moral approval of an evil which these leaders believe they cannot prevent by legislative action. Legal toleration or more accurately the hedging in of moral abuses, viewed in its totality, must serve and promote better morals.

NOTES

6. Cf. W. Schmidt, S.V.D., Der Ursprung der Gottesidee (Muenster, 1924-1953). English translation: The Origin and Growth of Religion: facts and theories (New York: Dial Press, 1931).

7. Cf. H. Junker, "Der altestestamentliche Bann gegen heidnische Voelker als moraltheologisches und offenbarungsgeschichtliches Problem," Aus Theologies und Philosophie (Duesseldorf, 1950), 164-179.

8. It would be fundamentally wrong to resort to any explanation of the princples of the natural law which would divest them of their absolute binding power. This absolute character of their power to bind and oblige does not permit, if we may cite an example, of the explanation given by many scholastics to account for polygamy in the Old Testament. We may not follow the teaching of these authors who hold that God 'dispensed' from monogamy in the Old Testament". A.F. Utz, O.P., Deutsche Thomasausgabe, Summa Theologica (Heidelberg, 1953), 18, 440

9. SCG, lib. 3, cap. 123.

10. D 408: "Nec ulli unquam licuit insimul plures uxores habere, nisi cui fuit divina revelatione concessum, quae mos quandoque, interdum etiam fas censetur, per quam sicut Jacob a mendacio, Israelitae a furto, et Samson ab homicidio, sic et Patriarchae et alii viri justi, qui plures leguntur simul habuisse uxores, ab adulterio excusantur. Sane veridica haec sententia probatur etiam de testimonio Veritatis testantis in Evangelio: 'Quicaunque dimiserit uxorem suam...' (Mt 19:0).