Narrative, Nature, and the Natural Law: From Aquinas to International Human Rights

Narrative, Nature, and the Natural Law

Previous Books by C. Fred Alford AFTER THE HOLOCAUST: The Book of Job, Primo Levi, and the Path to Affliction PSYCHOLOGY AND THE NATURAL LAW OF REPARATION RETHINKING FREEDOM: Why Freedom Has Lost Its Meaning and What Can Be Done to Save It LEVINAS, THE FRANKFURT SCHOOL AND PSYCHOANALYSIS WHISTLEBLOWERS: Broken Lives and Organizational Power THINK NO EVIL: Korean Values in the Age of Globalization WHAT EVIL MEANS TO US THE MAN WHO COULDN’T LIE: Essays and Stories about an Ancient Quarrel between Philosophy and Poetry GROUP PSYCHOLOGY AND POLITICAL THEORY THE PSYCHOANALYTIC THEORY OF GREEK TRAGEDY THE SELF IN SOCIAL THEORY: A Psychoanalytic Account of Its Construction in Plato, Hobbes, Locke, Rawls, and Rousseau MELANIE KLEIN AND CRITICAL SOCIAL THEORY: An Account of Politics, Art, and Reason Based on Her Psychoanalytic Theory NARCISSISM: Socrates, the Frankfurt School, and Psychoanalytic Theory SCIENCE AND THE REVENGE OF NATURE: Marcuse and Habermas ASHES OF THE MOON: Environment and Evil in the Amazon (a novel)

Narrative, Nature, and the Natural Law From Aquinas to International Human Rights

C. Fred Alford

NARRATIVE , NATURE , AND THE NATURAL Copyright © C. Fred Alford, 2010

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All rights reserved. First published in 2010 by PALGRAVE MACMILLAN® in the United States – a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–62279–1 Library of Congress Cataloging-in-Publication Data Alford, C. Fred. Narrative, nature, and the natural law: from Aquinas to international human rights / C. Fred Alford. p. cm. ISBN 978–0–230–62279–1 (alk. paper) 1. Natural law. 2. Natural law—History. I. Title. K460.A44 2010 340 .112—dc22 2009035089 Design by Integra Software Services First edition: May 2010 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

C o n t e n ts

Preface 1 Introduction

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2 Saint Thomas: Putting Nature into Natural Law

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3 Maritain and the Love for the Natural Law

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4 The New Natural Law and Evolutionary Natural Law

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5 International Human Rights, Natural Law, and Locke

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6 Conclusion: Evil and the Limits of the Natural Law

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Notes

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References

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Index

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Preface

Beginning with Saint Thomas Aquinas and ending with the latest developments in international human rights, I have sought to bring a fairly traditional interpretation of the natural law to some rather untraditional problems and areas. The term “traditional interpretation” refers not to the religious or ideological perspective of the book, but rather to the view that natural law is “written on the heart.” Untraditional is the way my approach uses narrative theory to put feelings into words, and words into feelings. The result is that stories, rather than argument, become the basic unit of the natural law. I do not claim that this is the only way to do natural law; I do claim that it is a fruitful way. More than any other book of mine, I have kept the question of the reader in mind. Who am I writing for, I kept asking myself? Not, I think, for the usual audience of the academic monograph: fellow professionals interested in the technical details of the subject. I am more interested in explaining natural law and its relevance today to those who might imagine that the natural law has something interesting to say, but can’t quite figure out what. The reader will require some background in philosophy, theology, or political theory. Better yet is a firm foundation in the liberal arts, though that is becoming a rare legacy. In any case, the reader who wants to do something with the natural law, rather than argue about this or that detail, would be my ideal reader. What can one do with the natural law? One can make sense of the proper relationship between morality and public life. One can explain a good deal of otherwise puzzling human behavior, particularly in groups. Evolutionary natural law, the topic of chapter 4, is particularly helpful in this regard. One can begin to understand when talk about international human rights has some basis in natural law, and when it is just talk. Of course, it’s all just talk, isn’t it? Yes and no. For natural law to add something to our discussions, nature, including human nature, must be a meaningful category, not just a term of suspicion and contempt. For too long now, at least since Immanuel Kant (1724–1804),

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ethics, including that ethical theory known as the “new natural law” (discussed in chapter 4), has tried to lift ethics out of nature, so that human autonomy, ethics, and freedom might coincide. The natural law challenges this direction in ethics, and yet it is a challenge about which we must be careful. Nature does not speak for itself, but only in the stories we tell about it, stories that are never free of the dominion of fear, power, and desire—that is, society, economics, politics, and culture. The heroes of the natural law, in my book, are the unlikely combination of Jacques Maritain and John Locke. Maritain because his background in phenomenology, coupled with his love of poetry (and perhaps his love of love), enables him to make the most sense of that old saying that natural law is “written on the heart.” In other words, Maritain makes sense of the intuitive dimension of natural law: that we know it even before we can explain it. Locke is valuable because he helps keep us modest. Locke’s abiding concern with the “mediocrity” of men’s minds, as he puts it, coupled with the overwhelming tendency of humans to confuse the historical and social concerns of the day with the natural law, led him to limit the natural law to the basics of what today we call international human rights. By the term “basics,” I refer to the rights of life, liberty, and security of person. Within this sphere, however, natural law is absolute, a duty, not just a right. In other words, individuals have rights not because individuals automatically have rights, but because individuals are all subject to the same natural law. My thesis (what I bring to the argument that I think is original) is an appreciation of the consequences of seeing human rights as natural law: a humility that lets the other be, that recognizes a sacred boundary between my community and another that we have a duty to respect, and to protect, with arms if need be. My inspiration for this idea comes from Reinhold Niebuhr, a Protestant theologian whose insight into the natural law is coupled with a corresponding blindness. Niebuhr’s blindness stems, in good measure, from his apparent ignorance of the contribution of Jacques Maritain to the development of the natural law. Parts of chapters 2 and 3, on Saint Thomas and Jacques Maritain, are at points fairly technical, having to do with the status of realism in Thomas, and the influence of personalism, as the teaching is called, on Maritain. Understanding the natural law does not have to be made difficult. In some ways it is the easiest thing in the world because it is indeed natural. But the history of the natural law raises some philosophical and historical issues that are worth understanding if we

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are to fully appreciate the claims natural law makes about the moral world we share. Nevertheless, there are a number of debates among scholars over this or that aspect of Thomas, Maritain, and Locke that I have declined to address. For example, I argue that the state of nature in Locke represents his vision of life under the natural law, a position similar to one held by some members of the so-called Cambridge School. Other scholars disagree, but this is not a disagreement that will be helpful to analyze for the purposes of the argument at hand, which is to show the continued relevance—and some surprisingly radical consequences—of a rather old-fashioned way of looking at the natural law. My thanks are reserved primarily for my students, graduate and undergraduate alike, who have forced me to understand what I was explaining to them about the natural law in classes in ancient, medieval, and modern political philosophy. It is from this effort, over a number of years, that this book came almost to write itself. Do other professors ever have that awful feeling of talking or lecturing about some topic, only to silently say to themselves something like, “Not only do I not understand what I am saying, but I wouldn’t believe myself for a minute were I on the receiving end”? It’s the feeling I get when I can recite all the right words about a topic, define the natural law perfectly, as Thomas defines it, for example, but have not yet made the words my own, generally because I have not put them in my own terms and language, and so come to a decision about whether I believe them or not. I can teach something I don’t believe. If I couldn’t, I wouldn’t be a teacher, but a preacher. But I find it extraordinarily difficult to teach something that I don’t understand in my own terms, my own language, my own examples from life. This book began as that struggle, even as it has come to take on something of a life of its own. For in the end, a book must address an audience, not just the needs of its author. Earlier, I described the audience I imagine as reading this book. But perhaps I will be surprised. In thinking about narrative and the natural law, I owe an intellectual debt to a former colleague, Peter Levine, which is not fully captured in the references. Levine is currently research director of the Jonathan M. Tisch College of Citizenship and Public Service at Tufts University. He would not likely agree with many of my conclusions about the natural law. C. Fred Alford Yarmouth Port, MA

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Chapter

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Introduction

Natural law is not an ethical position we are asked to adopt. Neither is it a philosophical claim that we are required to found or justify. Natural law is a claim that there are certain judgments that we have already made and could not help making. Natural law is an account of what we already know about right and wrong, even if we do not know we know it, and even if we have the misfortune of never learning what we already know. We waste our time if we think that natural law can be proven, that the point is to found, ground, or in some other way demonstrate the truth of natural law. Yet, a great many academics spend their time doing just that. I would be wasting my time trying to prove natural law to you. Would that I were clever as Socrates, calling forth your hidden (even to yourself) knowledge of the natural law merely by asking you a series of questions. The process is known as maieutic,1 referring to the practice of midwifery, through which the questioner causes the answerer to give birth to what is already present, just waiting to be born. Since I’m not that clever, and since this is a book, not a dialogue, I will have to take the long way around.

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It is civic law that we drive on the right side of the road (at least in the United States), don’t drive over the posted speed limit, don’t trade on insider information in the stock market, and so forth. It is natural law (reflected in the civic law) that it is wrong to murder. To call natural law “natural,” means that it is wrong for the same reasons everywhere, just as “fire burns both here and in Persia,” as Aristotle remarks (Nicomachean Ethics, 1134b27). Antigone put it as well as anyone ever has when King Creon asks her if she was aware of his proclamation against burying her brother Polyneices, and if so, why she still dared break the law. For me it was not Zeus who made that order, Nor did that Justice who lives with the gods below mark out such laws to hold among mankind. Nor did I think your orders were so strong that you, a mortal man, could over-run the gods’ unwritten and unfailing laws. Not now, nor yesterday’s, they always live, and no one knows their origin in time. So not through fear of any man’s proud spirit would I be likely to neglect these laws, draw on myself the gods’ sure punishment. (Sophocles, Antigone, lines 450–460, Wyckoff translation)

About some speeches, explication would only lessen their impact. In fact, natural law is all around. Today, it is most present in what is called international human rights, even though some question the relationship. Are human rights what natural law looks like in a liberal era—that is, an era in which the individual comes first? If so, then individuals are born with rights attached to them, so to speak. Another way of looking at this question, an older way, is to see individuals as possessing rights because of how each individual stands in relationship to the natural order, including his fellow man or woman. In other words, human rights come from natural law. We have human

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rights only because we first share in the natural law. This is an important distinction, but it can wait. One expression of human rights is the United Nations’s Universal Declaration of Human Rights, adopted in 1948 in the aftermath of the Second World War. Much of what it says seems quite straightforward. Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 3 Everyone has the right to life, liberty and security of person. Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 18 Everyone has the right to freedom of thought, conscience and religion; . . . And so it goes—a total of 30 articles, most of them similar to these in tone and spirit, and the last ten more specific. Like most readers (I imagine), I was in almost complete agreement with the Universal Declaration of Human Rights, but soon found myself wondering. What would happen if someone said, “No, some people are superior to others. Some people deserve to be tortured. Freedom of thought and expression are too dangerous to be left to any but an elite few”? What would I, what would anyone, say to this person? For, the Universal Declaration offers little help here. It asserts these rights, but it offers no arguments for them, though if one works hard enough one can discover an argument in the Preamble, an argument based on shared membership in the human family, a point considered in chapter 3. This leads to another consideration. Perhaps one cannot argue very well for principles as basic as these. One just knows or feels (likely some combination of both) them, or one doesn’t.

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The Universal Declaration of Human Rights was not written in a vacuum. It was written, in part, in response to a problem faced by the Allies at the end of the Second World War. Almost everything the Germans did was totally legal according to the German civic law. The Germans were scrupulous about the law—passing laws to strip Jews of their citizenship, laws to deport them to the death camps, and so forth. When it was time for the Allies to put the architects of the Holocaust on trial in 1945, there was a problem. The German defendants said that they were following the laws of Germany. How could they be found guilty of following the civil law?2 The Allies put twenty-four of the most important captured leaders of Nazi Germany on trial in the city of Nuremberg, trials that lasted almost a year. Though there was considerable dispute about the status of the court at the time, in retrospect, the Nuremberg Trials can be seen as establishing an important principle, one reflected in the Universal Declaration of Human Rights itself, as well as in the International Criminal Court, an institution whose origin can be traced back to the Nuremberg Trials. About some acts, it is no defense to claim that one is following orders, or even the law of the land. Every human being with reason knows that it is wrong to deliberately murder innocents. Hermann Goering, one of the leading organizers of the Holocaust, told the court that the trial was nothing more than an exercise of power by the victors of the war; justice had nothing to do with it. The trial court claimed differently. About such things as the murder of innocents, there exists a higher law that every normal human being must know. We may disagree over the details, but every normal human being knows that civil laws, or commands claiming the status of law, proclaiming the deliberate murder of women, children, and noncombatants violate the conscience of humankind. Though the Allies never used the term “natural law,” the concept was implicit from the beginning. The Nuremberg Trials were not just a case of the victors punishing the vanquished. The trials recognized that every mature human being knows (or should know) that certain terrible acts, whether or not they

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are in accord with the civic law, are wrong, and not to be committed. Furthermore, certain commands, even when given by those in a position to issue lawful orders, so violate the conscience of humankind that they are not to be obeyed. This recognition is reflected in the First Protocol of the Geneva Convention of 1977, which protects unarmed civilians from attack by air and ground forces. Another example of the presence of the natural law in everyday political life is Martin Luther King Jr.’s “Letter from Birmingham Jail,” written in 1963, during the height of the struggles against segregation in the American South. King was in jail for protesting segregation, which was legal at that time in Alabama. This is what King said about the laws he broke, ostensibly parading without a permit, but really the laws upholding segregation. How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.3

Still, the problem remains. What do you say to someone who counters, “I don’t think such a higher law exists; I can’t make any sense of it. You say it does, I say it doesn’t. Who’s to decide? The one with the most power, that’s who.” Against such an argument, at least when put forth by someone like Goering, you don’t muster better counterarguments. You shoot him, as has been wisely said. We should not expect our arguments to overwhelm the wicked and unreceptive. Neither the Nuremberg Trials nor Martin Luther King Jr. relied on arguments alone. The Nuremberg Trials convicted and executed a dozen leading Nazis (Goering committed suicide the night before his planned execution), and King helped mobilize a vast civil rights movement employing civil disobedience.

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Relativism? Allan Bloom (1988), who taught at the University of Chicago for years, said that there are two things that almost every freshman there believes: The truth is relative Everybody is equal

The second assumption depends on the first. If the truth weren’t relative, then those who know it would be better than those who don’t, and democracy itself would be impossible. Democracy depends on relativism, or so the reasoning of the young seems to conclude. That other conclusions might follow seems not to have occurred to Bloom’s students, or so he tells us, such as that the truth is not relative. But we live with those who hold to false beliefs out of a combination of desire for civil peace, plus a certain modesty about our own convictions (which is not the same as relativism). James Q. Wilson, who approaches the natural law from the perspective of evolutionary development (the topic of chapter 4), makes much the same claim as Bloom. Ask college students to make and defend a moral judgment about people or places with which they are personally unfamiliar. Many will act as if they really believed that all cultural practices were equally valid, all moral claims were equally suspect, and human nature was infinitely malleable . . . . In most respects their lives are exemplary. Thus it was all the more shocking when . . . . I found that there was no general agreement that those guilty of the Holocaust itself were guilty of a moral horror. “It all depends on your perspective,” one said . . . . To many of my students, there is no human nature that renders some actions entirely inhuman. (Wilson 1993, 6–8)

If Bloom holds to a version of the natural law (and that is unclear), it is certainly different from Wilson’s vision, which is based in human social nature as it has evolved over a hundred thousand years. Bloom’s natural law would probably come closer to Antigone’s belief in universal principles that are known

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by all who would but look and listen. This is the implication of the title of his book The Closing of the American Mind to the possibility of an immediate natural experience of right and wrong. Different as their views of the origin of natural law are, both Bloom and Wilson reveal that the issues raised by the natural law are not merely academic. Or if they are, then the issues the academy deals with are not just for ivory tower intellectuals, but concern every thinking individual: Do we need to prove that the Nazis were wrong, or is it good enough simply to know it? And, does “know it” mean anything more, or less, than “feel it?” Does it help to know that Martin Luther King Jr. wasn’t merely victorious in his struggle against legal segregation, but that he had natural law on his side? Did natural law help him and others of goodwill in their struggles? Does it help us better understand the history of the civil rights movement, including that history yet to be written? What happens when students and others lose confidence in their ability to say that acts of mass murder and genocide are definitely wrong, indeed inhuman? What about more subtle (and they are not terribly subtle) examples, such as someone living a life of drugs and crime? Do we know for certain that such a life is wrong, and does natural law tell us so?

A moral catastrophe

A number of years ago, I was invited to serve on the ethics curriculum advisory panel of the local county school board. The goal was to develop an ethics curriculum for the lower grades. The advisory panel had on it those you might expect: ministers, rabbis, a couple of concerned parents, a couple of concerned teachers, and me. What should an ideal ethics curriculum teach? We never got anywhere. We got stuck at the very beginning, at teaching students that they shouldn’t hit each other. “How can we teach that?” said one committee member, evidently echoing the views of several other members. “Some

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cultures value the physical expression of difference, and who are we to say otherwise?” An odd thing about this conversation was that not a single member of this committee thought that students should hit each other, or should be taught that it was correct to express their differences in this way. Furthermore, no committee member knew of the existence of any culture that valued the “physical expression of difference,” by students hitting each other. Not only that, but the committee understood that in a contemporary world in which a student who got hit might come back with a weapon, self-control is not just a virtue, it is a lesson in survival. The committee members simply had no confidence in their ability to judge right and wrong for the purposes of teaching others. The specter of “cultural relativism” haunted them—that someone somewhere might object to a particular value, and they would have nothing definitive to say, only their own untrustworthy judgment to fall back on. The notion that the cultivated judgment of the community, if not corrupted, is the basis of the natural law did not occur to them; I believe they would have rejected it if it had. Why? Because in theory, though not in practice, individual choice is sacred. The result can be quite confusing. Before continuing, I should tell you something about the community in which I live. It is a planned community, originally built upon a communitarian ideal, in which three faiths were to worship separately but together in the same “Interfaith Center,” which is purposefully unadorned with religious symbols. The communitarian ideal has faded over the years, but has not entirely disappeared. In other words, not every community would have responded as the representatives of this community did. Though they were a generation older, one imagines these committee members as students in one of James Q. Wilson’s classes. “In my classes, college students asked to judge . . . will warn one another and me not to be ‘judgmental’ or to ‘impose your values on other people’ ” (1993, 7). The experience I had is sometimes, but misleadingly, called relativism. At first glance, it is similar to the situation described

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by Alasdair MacIntyre in the opening pages of After Virtue (1981, 1–3). Imagine that an ecological catastrophe had occurred, brought on by the unfettered experimentation of scientists. Angry mobs had burned laboratories, as well as libraries filled with scientific journals. Much later, at least a generation, possibly more, scholars as well as ordinary men and women would try to reconstruct the science that had been lost. They would recover many of the terms, such as “molecule” and “inertia,” but the experimental and theoretical framework that gave these terms meaning was lost. Neither the ideal of the scientific method, nor the theories in which these terms were embedded, and which gave them meaning, was available to the new scientists. As a result, their use of the scientific terms was arbitrary, and ultimately incoherent. This is the situation with ethics, today, says MacIntyre. Terms such as “morally right,” “the human good,” and so forth remain, but the context, which is roughly that of the Aristotelian worldview, in which the telos of a good human life was obvious for all to see, has disappeared. Absent, in other words, is the evaluative framework, the good for man and woman, that makes a judgment about a life or an action objective, not merely a matter of taste. Where once one could talk about a human life as one might talk about a watch, measuring each by objectively shared standards of excellence, that time has long passed. Why has it passed? Because we no longer live in traditional communities of shared values. This is the environment in which natural law emerged—a world in which people understood themselves first and foremost as part of a community, so that every individual could see that his or her own good was naturally part of the common good. Perhaps the best way to explain this is to tell a story about its polar opposite. If the good people of the ethics committee correspond to Glaucon and Adeimantus, characters in Plato’s Republic who represent average citizens, the Avalanche Man, as I call him, corresponds to Thrasymachus, a sophist who speaks the fearsome, brutal truth.4 Among my very best students, the Avalanche Man

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worked almost full time, putting himself through school, all the while maintaining an “A” average. The summer after his junior year, he worked as an intern at an investment banking firm on Wall Street, and went on to earn an MBA at Harvard. He came back to visit me several years later (well before the Great Recession of 2008), and I asked him why he had worked so hard, studied so hard, and given up so much, for we had just been talking about how it had been easy for him to save money. It had been easy because he had no time for a social life and so had nothing to spend his money on. Nothing in college except room, board, and books, and nothing while at his investment banking job except good suits and a little room in New Jersey, a quick commute by subway to Wall Street. Working seventy- to eighty-hour weeks doesn’t leave much time to spend money. Why do you live like this, I asked? What’s the point? Will you ever stop? Not for now, he said. I think the country is headed for an economic disaster, an economic collapse. It’s like an avalanche. And I want as many bodies as possible between me and the bottom to cushion the fall. I was speechless. There was nothing in the way he talked about the impending economic avalanche that suggested hostility, or that he took pleasure in the thought of being one of the few survivors of a great catastrophe. That’s just the way he had always known it would be, and he had been planning for years to be a survivor.5 I thought of the Avalanche Man again on 9/11, when hundreds of men and women, paid hundreds of times less than my former student, rushed into the bottom of the collapsing avalanche of the twin towers and died trying to save others. Our society depends on that. Natural law positivism

How to characterize the position of most people in the United States today toward the natural law, since even the term seems almost a relic of a bygone era? As Vice President Joseph

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Biden stated when he was on the Senate Judiciary Committee, Justice Clarence Thomas of the Supreme Court was unqualified because he believed in the natural law (a suggestion for which there is little evidence), and “natural law dictates morality to us, instead of leaving matters to individual choice” (MacIntyre 2000). Over whether we really want to leave basic moral issues to individual choice, and what the world would look like if we did, Biden did not opine. In another book (Alford 2006, 23–60), I reported on my studies of what young people believe about the natural law, and it is primarily on the basis of my research for that book that I draw my conclusion. The simple answer, the unsurprising answer, is that the vast majority of those interviewed avoided the extremes of both the ethics committee and the Avalanche Man. Most were not relativists. Most held to a slimmed-down version of the natural law. If one were going to put a name to this majority position, the term “positivistic natural law” would come closest to the mark, referring to the way in which this position posits reality. Positivistic natural law is descriptive natural law, a description that remains on the surface. The preeminent theorist of positivistic natural law is H. L. A. Hart. Given certain facts of human nature, Hart argues that enforceable law is necessary if humans are to live decently among each other. The facts of human nature include the following: Human vulnerability: if humans had exoskeletons, natural law would look quite different. Relative equality: the weakest can kill the strongest because even the strong must sleep. Limited altruism: people are not devils, but neither are they angels. Limited resources: people need food and shelter, and so some institution of property, though not necessarily private property, is needed. Limited understanding and strength of will: most can see the point of this minimal natural law [for that is what Hart calls it], but

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frequently lack the foresight and strength of will to stick to these arrangements. (Hart 1994, 194–198)

Accordingly, says Hart, one can see that the laws of states and nations, called positive law, are rooted in natural necessity, which Hart readily characterizes with the term “natural law.” “These simple truisms we have discussed . . . disclose the core of good sense in the doctrine of Natural Law” (199). MacIntyre argues that the natural necessity to which Hart refers is void of moral content. An unjust legal system would fulfill the needs of stability as well as a just legal system. A system of laws that preserved the security, stability, and property of its members would be valid even if these laws condoned slavery and the persecution of minorities (MacIntyre 2000, 96–97). One thinks here of National Socialism in Germany, a system of obsessive legality, under which the dispossession and persecution of the Jews was entirely legal. MacIntyre does not give Hart credit for recognizing this problem. Hart does; he simply doesn’t think it is best solved under the guidance of the natural law. On the contrary, men and women must take upon themselves the moral burden to violate an iniquitous law, as Hart calls it (1994, 211–212). Hart holds this position because he believes that “the minimum content of Natural Law” is supported by the facts of human nature, whereas “a teleological conception of nature as containing in itself levels of excellence” is “too metaphysical for modern minds” (1994, 192–193, Hart’s emphasis). Hart’s great virtue is his refusal to pretend that the naturalistic fallacy (the so-called derivation of “ought” from “is”) poses a barrier to natural law. On the contrary, the naturalistic fallacy is a fallacy only to those modern minds that cannot imagine that the desire to live might itself imply the desire to live well. Where Hart goes wrong is in suggesting that in stepping outside the law, one is stepping into a realm of moral nothingness, or at least into a realm in which nothing useful can be said. Hart does not state this explicitly, but because he says nothing else about this realm outside the law, that is the conclusion

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one must draw. The complement of Hart’s positivistic natural law is moral decisionism. I return to this point in a later chapter.

Narrative, Nature, and the Natural Law “Written on the heart” is a term often used to describe natural law. It means that merely by virtue of being human you know it, even though you may have chosen to forget it, or have been so unfortunate never to have learned what you already know. The latter category sounds contradictory, but it is not. It means simply that you have been brought up in an environment in which you have not been encouraged to develop or use your moral intuition, what Jacques Maritain, the twentieth century’s most influential interpreter of Thomas Aquinas, calls “connaturality.” Maritain’s account of moral intuition is the topic of chapter 3; one way in which morality is corrupted is found in Aquinas’s account of the German robbers in, chapter 2. For now, the point is that moral intuition can have the status of an undeveloped capability, much like an undeveloped talent in other areas of life. Someone with naturally perfect pitch may never learn to express that gift if he or she remains in a musically impoverished environment. Many natural law theorists define natural law as “reason reflecting on nature.” “Nature” has been defined by evolutionary biologists, the subjects of chapter 4, as evolved mammalian nature, including human nature. But in the larger tradition of the natural law, nature has come to mean not just humans as they are, but as they could be at their very best, as well as the proper place of humans in the order of things. Here too, an evolutionary sense of development is at work, but unlike the best and most self-conscious evolutionary biologists, who understand that evolution means change, not fulfillment, natural law theorists treat development as an evaluative term. In other words, it’s good to become the best human one can be, to fulfill one’s potential as fully as possible. And what is that? Aristotle argued that reason can best answer the question of human fulfillment (N. Ethics, book 2). Others,

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such as Jacques Maritain, have relied on intuition, knowledge by inclination. Knowledge by inclination . . . is a kind of knowledge that is not clear, like that obtained through concepts and conceptual judgments. It is obscure, unsystematic, vital knowledge by means of instinct or sympathy [connaturality], in which the intellect, in order to make its judgments, consults the inner leanings of the subject—the experience that he has of himself—and listens to the melody produced by the vibration of deep-rooted tendencies made present in the subject. (Maritain 1951, 91–92)

Another natural law theorist, Vernon Bourke, puts it even more simply. Most men and women come to know the natural law by means of “ordinary grasping . . . a combination of low-grade cognitive and affective activity. Sometimes it is close to animal feeling” (Bourke 1998, 218). Not only ethologists (scientists of animal behavior), but moral philosophers such as MacIntyre (1999) have come to recognize that animal feelings, based on sympathy, and shared with higher animals, such as chimpanzees and dolphins, are the basis of human morality and the natural law; but only the basis, a necessary but not sufficient condition. Some evolutionary natural law theorists do not go on to make this important distinction. Though I do not adopt the view of Maritain, and certainly not that of Bourke, their thinking guides my own. Natural law has the status of a moral intuition. But if natural law stems from intuition, that is neither an argument nor sufficient evidence on its behalf. The intuitive basis of natural law must be subject to narrative. Moral intuition must become part of a social group’s story about itself in history. Even if there is direct access to the natural law through intuition, the status of natural law (both epistemological and practical) depends entirely upon its place in the narratives we weave as communities over time. This claim about narrative is an empirical claim, as well as an epistemological one. While we can know our intuitions by feeling them, intuitions possess the status of a natural law only to the degree that they are shared with others in a community

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over time. And the only way humans have found to do this is to tell stories about their intuitions. To be sure, one might call these stories “derivations from first principles,” but that is just a matter of form and label. Since first principles (murder is always wrong, for example) are not self-justifying, they require other stories to substantiate them. For example, one might tell a story about a god giving a prophet a tablet with this commandment written upon it. And, if one were to question this story, one would tell another story, perhaps about this god’s creation of the world, and so on. My argument (and it is not uniquely my argument) about stories will become clearer in the chapters ahead. The point for now is that the claim that natural law rests upon intuition does not create or avoid any unusual epistemological problems—that is, problems in the theory of knowledge. Intuition is not self-justifying. Nor should we reject out of hand the claim that moral intuition taps a deep source of human experience that reveals the meaning of life in how we care for each other. This experience too must be subject to narrative, as it already has been, for narrative is how we make sense of the world. Or, as Barbara Hardy puts it, “We dream in narrative, daydream in narrative, remember, anticipate, hope, despair, believe, doubt, plan, revise, criticize, construct, gossip, learn, hate and love by narrative” (Hardy 1968, 5). By subjecting our intuitions to narrative, and so sharing them with others, we make them more than private possessions, but the subject of social and cultural negotiation. Not just me and my feelings, but the cultured and developed feelings of a community in history, over time, is the basis of natural law. Moral intuitions are not self-justifying. And narratives about them are not just likely stories about how the moral world is put together. If my argument is correct, what makes the narratives of natural law special is that they tap a deep ethical intuition about right and wrong, good and bad. However, there is reason to distrust such intuitions, certainly when they are the product of a single man or woman’s insight, but even when they are widely shared. Large numbers of people believed for a long time that slavery was compatible with the natural law

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because some people were natural slaves, a view given weight by the teachings of Aristotle (Politics, book 1, c’s 3–7; N. Ethics, book 7). Narrative about intuition, it will be argued, is a good guide to natural law only about the most basic issues, and then only when all affected have had a chance to tell their stories and have them heard. This includes, in the case of the preceding example, the slave. To this should be added that our confidence in this narrative is increased over time. Should this narrative remain convincing to large numbers of people, there would be reason to say that it is not merely a narrative, but an articulation of our connatural experience, as Maritain calls it, “the melody produced by the vibration of deep-rooted tendencies made present in the subject.” To Maritain’s claim, I would offer a friendly amendment. Natural law is the vibration of deep-rooted tendencies present not only in the subject, but in the “inter-subject”—that is, the relationships among all who are affected by the natural law, such as master and slave. Were this ideal standard adhered to in the era of slavery, there could have been no slavery. For how could the relationship between master and slave vibrate in any other way but cacophonously and out of tune? You are writing about an ideal, the reader might reply. Of course, but what else is the natural law?

My Approach is not Burkean Some who are familiar with the history of political philosophy (and this book is not written for them alone) will be surprised to see Edmund Burke (1729–1797) even mentioned under the category of natural law. The usual line on Burke runs like this. He was primarily a utilitarian, a worshiper of the expedient, who was convinced that the mere fact that any custom or institution had grown up over a long period of time established an overwhelming presumption in its favor. The whole business of appealing from tradition to reason and nature was distasteful to him. (Randall 1940, 432)

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In fact, Burke was a thoroughgoing exponent of the natural law, employing it consistently throughout his long career in the British parliament and as a private citizen. Against British laws denying Irish Catholics basic rights of citizenship, Burke wrote that such laws were not only inexpedient, but that they violated “the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter—I mean the will of Him who gave us our nature, and in giving impressed an invariable law upon it.”6 Similarly, the right of Irish Catholics to own property is based on eternal law and equality, “which is grounded on our common nature.” Burke favored the American colonists’ cause against the Crown, not because he believed in an abstract right of revolution, but because he believed that if the British government succeeded in destroying liberty abroad, Englishmen would soon have none at home. “In order to prove that the Americans have no rights to their liberties, we are every day endeavouring to subvert the maxims which preserve the whole spirit of our own.”7 The principle Burke followed is that arbitrary will, including the will of the Crown, must always be subordinate to the civic law, and the civic law to eternal law. Against the power of the East India Company to rule over India in an arbitrary manner, Burke argued that the Magna Charta is a charter to restrain power, and to destroy monopoly. The East India charter is a charter to establish monopoly and to create power. Political power and commercial monopoly are not the rights of men . . . . These chartered rights do at least suspend the natural rights of mankind at large; and in their very frame and constitution, are liable to fall into a direct violation of them.8

Burke concluded that all men are born subject to one great, immutable, preexisting law, by which we are connected in the eternal frame of the universe.9 Against the French Revolution, Burke had, of course, much to say. An especially revealing comment came in his response to a Dr. Price, a cleric who dared to compare the French Revolution with the English Glorious Revolution. Both, said Price,

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provided an opportunity for citizens to choose their governors. Burke’s response comes close to identifying natural law with English common law and common practice. The Glorious Revolution, said Burke, was made to preserve our ancient indisputable laws and liberties, and that ancient constitution of government which is our only security for law and liberty . . . . The very idea of the fabrication of a new government, is enough to fill us with disgust and horror. We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. Upon that body and stock of inheritance we have taken care not to inoculate any scion alien to the nature of the original plant . . . . Our oldest reformation is that of Magna Charta. The ancient charter . . . was nothing more than a re-affirmance of the still more ancient standing law of the kingdom . . . . In the famous law . . . called the Petition of Right, the parliament says to the king, “Your subjects have inherited this freedom,” claiming their franchises not on abstract principles “as the rights of men,” but as the rights of Englishmen, and as a patrimony derived from their forefathers. (Burke 1955, 35–36)

There is much to admire in Burke, particularly the way he consistently applied natural law thinking against arbitrary power in the defense of Irish Catholics, American Colonialists, and East Indians. Nevertheless, his way of approaching the natural law is opposite to the one pursued here. For Burke, Britain’s “constitutional policy” works “after the pattern of nature,” and its “political system is placed in a just correspondence and symmetry with the order of the world,” held together “by the disposition of a stupendous wisdom moulding together the great mysterious incorporation of the race . . . . by preserving the method of nature in the conduct of the state” (Burke 1955, 38). Forget for a moment how comfortable Burke was with the British class system. Burke has drawn the natural law and the state so closely together that they have practically become one. Worrisome enough in Burke’s day, it took the rise of modern totalitarianism, whose defeat led in turn to the rise of the culture of international human rights, to reveal the paramount

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importance of separating natural rights from the state, and both from any organic ideal. My way of proceeding assumes that natural law is always in tension with the state. Natural law is a narrative we tell ourselves—not just a good story, but one that articulates a moral intuition. In judging the validity of this intuition, we may adopt some Burkean standards, such as whether our narrative has stood the test of time and circumstance, but we should also consider some rather non-Burkean standards, such as whether all who are participants in the story have had a role in telling the story. In other words, is the story told, at least in part, by everyone concerned, and not just for and to them? Moral intuition, transformed into narrative, will be given little extra weight because it is embodied in the constitutional practices of the state. On the contrary, it is assumed that the state’s practices come closer to reflecting a history of the balance of power among those who govern than they do the natural law. To be sure, time, practice, tradition, and collective wisdom may go together, but so may prejudice. As Burke puts it, Each contract of each particular state is but a clause in the great primaeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures each in their appointed places. (Burke 1955, 110)

Rather than continue to state the obvious, that Burke comes close to equating the natural law with the class and social structure with which he is most comfortable, I shall wait until the conclusion of chapter 6 to make a somewhat different point, one that Burke should have appreciated, but from which he drew quite a different conclusion. It is a point emphasized by Burke’s great English adversary in natural law thinking, John Locke, the man who regarded government as a social contract, not to be looked at with holy reverence, but as a fiduciary arrangement with a people’s governors. A contract that may be broken when the governed become convinced that

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they have suffered a long train of abuses (Second Treatise of Government, 222). Contract is not, however, the aspect of Locke’s thinking that I will emphasize. Emphasized instead is Locke’s appreciation of the mediocrity of men’s minds, the way in which tradition and custom are so easily confused with natural law. For Locke, this means that the natural law should be confined to the most basic rights: the rights of life, liberty, and property. Burke held to this same list of rights, but in practice this meant accepting the natural order of society, albeit a society under law. Can we be more ambitious than Locke without falling into Burkean conservatism, which would treat the traditions and ways of life with which we are most familiar as though they were automatically an expression of the natural law?

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S a i n t T h o m a s : P u t t i n g N at u r e i n t o N at u r a l L aw

Thomas Aquinas (ca. 1225–1274) is the paradigmatic natural law theorist. Not the first; that honor probably goes to Cicero, though some would grant it to Aristotle. Aquinas’s importance stems from the way in which he respects nature, including human nature, a respect that it had lacked during the medieval period. The influence of Aquinas on the natural law is evinced by the fact that almost any discussion of the topic will refer to Aquinas, much as any discussion of psychoanalysis will eventually refer to Freud, any discussion of classical philosophy to Plato or Aristotle. One influence we should be skeptical of, however, is that of tracing the lineage of evolutionary natural law, where much of the intellectual action is today, back to Aquinas. Frequently compared, Aquinas and evolutionary natural law mean something quite different by the term “nature.” Cicero’s discussion of the natural law in On the Republic (ca. 54–51 BCE) sets the stage for later discussions of the natural law. Cicero is not considered the “father” of natural law only because he did not elaborate as Aquinas did, sometimes in excruciating detail. An extended excerpt from Cicero will set the stage for much of our subsequent discussion as well.

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True law is right reason conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing in Rome and another at Athens, one thing today and another tomorrow, but in all times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its promulgator, its enforcer. And he who does not obey it flies from himself and does violence to the very nature of man. And by so doing he will endure the severest penalties even if he avoids the other evils which are usually accounted punishment. (III, 22)

It is tempting to read Cicero’s defense of the natural law as a gloss on Antigone’s more concise defense of her violation of the civil law. Certainly, the basic principles are shared: natural law is universal, timeless, and the nature in question is primarily human nature in a broad sense of the term. Whether or not one is punished by the civil law for violating the natural law, nature will have its say, for one has failed to put one’s own nature in conformity with the larger natural order of things. What about god? Here, modern readers are likely to misinterpret Cicero, for the god he is concerned with shares little with the Abrahamic God, the monotheistic God of Jews, Christians, and Muslims. For Cicero, god is one with the universe. More importantly, since that phrase has become a cliché, Cicero held that “it is improbable that the material substance which is the origin of all things was created by divine Providence. It has and has always had a force and nature of its own” (Lactantius, Divine Institutes, ii. 8.10). This is, of course, quite the opposite of the prevailing Judeo-Christian view, asserted by Augustine, that God created the world ex nihilo, out of nothing (Genesis 1:1–2). In Cicero’s view, one could almost say, the universe created god. However, it would be more accurate to state that, for Cicero, there is no difference between

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the universe and god; together they constitute the fiery, pulsing body that is the universe (Cicero, On the Nature of Gods, book 1). However imprecise Cicero’s view of god and the universe remains, one may appreciate that lack of clarity was in harmony with Cicero’s approach. About such big questions one can know very little for certain, and today, Cicero would probably be categorized as an agnostic who was not adverse to speculation. This is an advantage for the natural law tradition, which continues to stand in an ambivalent relationship to God, and probably should. Except for evolutionary natural law theorists, most (but hardly all) natural law theorists believe in God. However, most natural law theorists, including Thomas, understand that it is the point of natural law that it not rest solely on sacred scripture, or Divine Law. Otherwise, natural law becomes the province of a particular group of believers, rather than appealing to all who share the human world. If natural law becomes the province of religious believers, it risks alienating itself from those who would be moral for reasons having little to do with a traditional God, and more to do with their vision of the proper relationship among humans (and animals) on this planet. Natural law risks becoming irrelevant to nonbelievers. A wonderful story is told about Thomas. Elements of it are likely even true, for it circulated during his lifetime. I tell it to you for no greater purpose than to share a good story. Early in his days as a novice in the Dominican Order, Thomas was kidnapped by his elder brothers, probably on orders from their mother, and imprisoned in a dungeon of the castle of the family Aquino. There he would stay until he gave up his priestly ambitions (or, in some accounts, until he decided to become a Benedictine). During most of his imprisonment, which seems to have lasted almost two years, Aquinas was impassive, resisting only when his brothers sought to remove his friar’s frock. Tired of waiting, and perhaps wishing to humiliate their odd brother, Aquinas’s two elder brothers slipped a gorgeous courtesan into his room while he lay sleeping. For the first and last time, Aquinas went over the top, grasping a burning branch from the fire, waving it about like a sword,

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sending the woman shrieking from the room. With the sword of fire still in his hand, Aquinas went to the door of his dungeon, locked it from the inside (it must have been more room than dungeon), and shoved the burning brand into the door, so as to make the sign of the cross in fire and burnt wood. Throwing the burning branch back into the fire, Aquinas sat down and continued his studies, transcribing one of Aristotle’s works on logic. It is said that on that very night, Thomas had a dream in which angels wrapped his loins in a girdle made of cords of fire so painful he awakened with a cry. The girdle represented eternal chastity. From that time, he never again suffered from the desires of the flesh and lived the remainder of his life in celibacy. Soon after their failed experiment in temptation, Thomas’s family relented, or simply gave up. Aquinas was released to rejoin the Dominican Order, with which he remained until the end of his days.1

Realism and Reality Thomas’s life’s work was to join the world of Aristotle with the spirit of the Bible. The world of Aristotle is the world of natural reality, including the powers of human reason. The spirit of the Bible is the spirit of Divine revelation, and all that is accessible to faith, above all the teachings of Jesus Christ about salvation, as well as Christ’s life as a living lesson to humanity. Aristotle allowed Thomas to see nature as nature, and so encouraged humans to live in the natural world. As much as the natural world is a sign of God’s magnificence, it is also our worldly home, and religion was at risk of denaturing the world by turning it into a regime of signs and symbols.2 As Thomas put it in Summa against the Gentiles (2, 4, 1), the theological point of view is not interested in fire in itself, insofar as it is fire. This point of view is interested in fire as it represents God’s majesty (Ecclesiasticus 42:15–43:33). Such a viewpoint has its place, but it can get old. Once it comes to dominate the human experience of the world, it becomes “impossible to live a healthy and human life in a world populated exclusively

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by symbols” (Pieper 1991, 47). Such a world is quite literally inhuman, incapable of supporting an animated human life, and Thomas came upon Aristotle at a time when he, and perhaps the medieval world itself (if one can speak for an era), was yearning for contact with reality in itself, something solid and firm. Thomas is a theorist of the strangeness of things. Our freedom consists in freeing ourselves of the cave of the mind, and entering into an encounter with the things of the world. “St. Thomas could as truly say, of having seen merely a stick or a stone, what St. Paul said of having seen the secret heavens, ‘I was not disobedient to the heavenly vision’ ” (Chesterton 1956, 148). What we have to figure out is how sticks and stones can gain us the heavenly vision. A large part of the answer is that, for Thomas, the heavenly vision is the unmediated earthly vision, one in which the subject is measured by the object, adaequatio intellectus et rei.3 The doctrine at work here is classical realism. The key elements of this teaching are as follows: At least some of our concepts refer to corresponding entities in the external world. (Not all of our concepts do, because, of course, we can imagine things that do not exist.) The knowing subject is not a “brain in a jar,” but a rational animal for whom knowledge comes by way of the senses. The concept is not the object of knowledge. The concept is that by which we know the thing. The thing itself is the object of knowledge.

Thomas, we shall see, is a classical realist, an apparent empiricist, holding (in a way that only seems modern) that everything that is in the intellect has been in the senses (Chesterton 1956, 134). One way of reading Thomas is that our encounter with the reality of the natural world in all its glory brings us to life. The other way returns us to a version of a “world populated exclusively by symbols,” even if these symbols now refer to the world, not God. It will not do to spend too much time debating Thomistic realism, as the doctrine is called, but understanding

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some of the issues involved will help us better comprehend his teachings on the natural law. According to Aristotle, an exponent of classical realism, the mind’s direct knowledge of reality would be impossible if some third thing intervened. This is why Aristotle makes the intriguing suggestion that “mind is, in a way, all things” (On the Soul, III. 8). Knowledge is not about having an image, or representation, of something, but rather a process by which the object enters into the subject. Of course, sticks and stones cannot literally enter into the mind, and so one might argue that it is an image of the stick or stone that enters the mind. But this is a dangerous territory, for the mind is notoriously active in its image making, quickly leaving the doctrine, or rather the possibility, of realism—the direct experience of reality— behind. And, if one were to talk about having in mind the image of an ideal stick or stone, the perfect stick or stone so to speak, one would have returned to the world of Plato’s forms. That is, one would have left realism for idealism. This is why Raymond Dennehy seems quite wrong to claim that under realism, “knowing occurs when the intellect is able to ‘define’ the object to itself, when it is able to grasp deskness, say, in the image of a desk” (Dennehy 2002, 145).4 Thomistic realism is based on Aristotelian abstraction, not Platonic idealism. To know something, be it sticks, stones, or human virtue, is not to know its various instances, but to be able to categorize it according to its cause, in this case what Aristotle calls its final cause. By the term “final cause,” Aristotle means the sake for which a thing exists or is done. Like Thomas, Aristotle was particularly interested in the human telos, the final cause or aim of all human endeavor (Aristotle, Physics, II. 3). We understand something, it enters into us and becomes a part of us, when we understand what causes it. We know something as fully as possible when we grasp its telos, its ultimate aim. Until then, we see, but we do not understand—for we don’t grasp the principle by which something acts, be it a tree or a person. Aristotle believed that the concept of a final cause applied to both nature and man. Or rather, nature and humans are part of the same order. As far as the tree is concerned, one can

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understand Aristotle as saying that a tree does not develop randomly, but according to an internal plan, contained in the tiny acorn that develops into a mighty oak. The plan can, however, be thwarted by external events, such as a forest fire or drought. This is actually not a bad way to think about the development of a man or woman as well. Each of us contains within a plan for our full and complete development. The plan is shared with other humans, for the plan is general, not particular; it is about what makes a fully developed human, not what makes a fully developed you or me. But as with the oak, this plan is readily thwarted by a bad environment. What is this plan? That is the topic of the next section. What is it that enters the self when we know? Perhaps the easiest way to think about an abstract universal, as it is called by followers of Thomistic realism, is by means of an analogy with a law of nature in science. We believe, or once believed, that a law of nature exists in the real world just as the objects it describes exist in the world.5 Consider, for example, the tendency of an object at rest to remain at rest unless acted upon by an external (unbalanced) force. To understand the movement of objects, it is not enough to know the movement of particular objects; one must grasp the principle involved in their movement, in this case, Newton’s first law of motion. This is roughly how Thomistic realism understands our encounter with the particulars of this world. Since there are so many particulars, so many moving objects, so to speak, we encounter them in a sensible manner only when we grasp their principle, the law under which they can be placed. For physical objects in motion or at rest, it may be the principle of inertia. For a man or woman living his or her life, the principle is the same. There are so many men and women, living so many different lives, that we must ask ourselves, “toward what final shape or end is this person’s life moving, and does it accord with a fully developed human life? That is, does it accord with the human telos?” Most of us, by the way, would be better off spending our time asking this question about our own lives, rather than the lives of others, though exemplars—good and bad—can help us answer this question about ourselves.

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Troubling is the tendency of Thomistic realism to lose its fascination with strangeness, as well as its capacity for wonder. From a belief that realism is unconcerned with particulars, and only with the general form of matter (a view akin to scientific general laws), it is evidently all too easy to end up holding the view that “matter is the enemy of knowledge” (Dennehy 2002, 145). Viewing Thomistic realism in this fashion loses much of what is gained by his project. However, let us be clear that not only is that last short step never taken by Thomas, but aspects of his work stand against it. The most important barrier is Thomas’s adoption of another Aristotelian category of causes, formal cause. By the term “formal cause,” Aristotle referred not to what we today would call a cause at all, but to the structural fundamentals shared by all elements of a class.6 These may be quite subtle. Martha Nussbaum explains the concept of formal cause this way. But in the case of living things, it is very clear that to explain behavior we must refer not to surface configuration, but to the functional organization that the individuals share with other members of their species. This is the form; this, and not the shape remains the same as long as the creature is the same creature. The lion may change its shape, get thin or fat, without ceasing to be the same lion; its form is not its shape, but its soul, the set of vital capacities, the functional organization, in virtue of which it lives and acts . . . . A corpse has the same shape as a living man; but it is not a man, since it cannot perform the activities appropriate to a man. When I ask for the formal account of lion behavior, I am not, then, asking just for a reference to tawny color or great weight. I am asking for an account of what it is to be a lion: how lions are organized to function, what vital capacities they have, and how these interact. And it is this, again, rather than an enumeration of its material constituents, that will provide the most simple, general, and relevant account for the scientist interested in explaining and predicting lion behavior. (Nussbaum 1978, 71)

Thomas applies the concept of formal cause to man much as Nussbaum does to a lion. What is it to be a human? We are

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not asking just for a description of a being that eats, copulates, gives birth, raises its young, and dies, though these facts are relevant. We are asking what it means to live a fully human life, and the conditions required to fulfill it. This is the concern of the natural law. Is it worthwhile distinguishing between formal and final cause, what is usually called a telos?7 Not necessarily. The formal cause refers, as we have seen, to the essential nature of the being in question, abstracted from its superficial and contingent characteristics. The final cause refers to the purpose for which a being exists, and again a distinction can be drawn between the superficial and contingent characteristics of a being, and its ultimate end, the telos. In fact, there is very little difference between formal and final cause. Or rather, when we know one, we know the other. The identification of formal with final causes is not vacuous. It is to say, about a developing entity, that there is something internal to it which will have the result that the outcome of the sequence of changes it is undergoing—if it runs true to form—will be another entity of the same kind.8

In this case another lion. The final cause, the sake for which something exists, is embodied and expressed in its formal cause—that is, its fundamental structure, the only way in which we can know its true purpose. This is as true for a man or woman as a lion. For all its formality, Thomistic realism is particularly useful in understanding how love can lead us to know the natural law. Like knowledge, love wants to become adequate to what it knows, to receive its lover’s imprint. Love has the quality of realism. Love is realism, a claim that may surprise, given the romantic, idealistic connotations of the term. Love, however, goes a step further, wanting to become what it knows, all without losing its tantalizing distance and difference from its beloved. For what is love without difference between desire and its object? More on this topic follows in the discussion of connaturality in the next section.

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Thomistic Natural Law For Thomas, natural law is the way in which humans participate in Eternal Law, which is God’s law, the reason of the Ruler of the Universe (ST I–II, 91). Yet, good Aristotelian that he is, Aquinas argues that because natural law is in accord with tutored human nature, not contrary to it, one can know the natural law and act in accord with it simply by being brought up in a decent human community. Or as Hugo Grotius (orig. 1625) put it four centuries later, What we have been saying [about natural law] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him. (Grotius 1964, Prolegomena, II)

Peter Kreeft (1990, 505) puts it more simply: “St Thomas would disagree with Dostoyevsky’s saying, ‘If God does not exist, everything is permissible.’ ” In other words, knowledge of the natural law does not depend on knowledge of eternal law. Kreeft elaborates, “When an atheist knows that theft is wrong he in fact knows something of the eternal law, but he does not know that it is the eternal law” (511). One can know the right thing to do, one can feel it in one’s bones, without knowing why. The natural law frequently has this quality.9 For Aquinas, the founding principle of the natural law is deceptively simple: “Good is to be done, and evil is to be avoided” (ST I–II, 94, 2). “Do good, avoid evil” might sound like a tautology, true by definition. Some new natural law theorists, such as John Finnis (1980) and Robert George (1999), argue that it is. Whether or not “do good, avoid evil” is a tautology as a stand-alone premise, Aquinas quickly fills it in, giving content to the good. Doing good includes fostering the following human goods: Preserve human life and avoid its destruction. Foster marriage and the sound upbringing of children.

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Educate and care for the children. Preserve community and avoid giving unnecessary offense to others. Respect private property except in exceptional circumstances, such as when the community is starving, and what food that remains is in the hands of speculators who are hoarding it, waiting for prices to rise. Then the community is justified in treating the property of individuals as though it belonged to the entire community as it once did. (ST I–II, 94, 2)

How Thomas argues

Thomas argues along two tracks that almost converge. The first (and dominant track) compares the operation of the practical intellect, which knows right from wrong, with that of the speculative intellect, which knows conceptual or intellectual fundamentals by virtue of the way the mind is built. An example would be knowing that the whole is greater than any one of its parts. This speculative knowledge of first principles, as Thomas calls them, is bestowed upon us by nature, but it is not merely innate (ST I–II, 51, 1; 76, 2; 79, 12).10 Our minds grasp this fact about the world because this is the way the world is; we do not impose this fact upon the world with our minds, as moderns would have it.11 Thomas assumes that all men and women seek the good, or they wouldn’t bother seeking it in the first place. They wouldn’t bother getting out of bed in the morning. The problem isn’t that men and women don’t seek the good; the problem is that men and women are frequently mistaken about the good. That is, they think something is good for them, but it isn’t, whether it is an extra helping of dessert or an extramarital affair. Since all men and women seek the good, the first principle of practical reason is “do good, avoid evil.” This principle has roughly the same status as the principle of noncontradiction in speculative reason: the same thing cannot be affirmed and denied at the same time. Similarly, people cannot want the good and the bad at the same time. Being people who seek happiness, they want the good (ST I–II, 94, 2).

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If one brings this first principle together with an indisputable empirical fact, that humans have bodies, then one arrives at the leading assumptions of the natural law. Since each human seeks to preserve his or her own being, because that is good, Thomas concludes that “according to this inclination, those things pertain to the natural law by which man’s life is preserved” (ST I–II, 94, 2). In other words, natural law leads man to preserve life; first his own, and then that of others. It’s easy to see how Thomas would be led to the conclusion that humans seek to preserve their own lives, because their own lives are good. But how does Aquinas so quickly reach the conclusion that it is equally good to preserve the lives of others? Because Aquinas isn’t Thomas Hobbes, for whom fear of individual death is the greatest fear a man or woman can experience, and security the greatest blessing (Leviathan, c. 13). For Aquinas, the good isn’t just my life. The good is life, because life is not merely a private possession, but a shared good (ST I–II, 94, 2). Under the natural law, individuals do not come together to sign a contract to guarantee their own security. People begin life together experiencing the same good, a life lived among other lives. Toward some we feel love, toward others friendship, and toward most we feel amity and shared community. This is the “original position,” if one wants to use language that does not truly apply to Thomas, because there is no social contract, only community.12 This explains how Aquinas segues so seamlessly from the injunction to preserve human life to marriage, to the upbringing of children, to their education and care, to the fostering of community. The ingredients, the relationships, are all there from the beginning, in the very first life, because the first life was never lived alone, and not even with the first Adam or Eve, but in the first community. This, at least, is the implication of Aquinas’s reasoning. One could say that all the principles of the natural law lead back to the single original insight that has virtually the status of an axiom: “do good, avoid evil.” But that would not be correct. The principles of the natural law lead back to that axiom, but gain their force only when combined with the natural fact that men and women are rational embodied beings who want to live

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together, bring children into the world, foster society, and know the good; beings who value not only their own lives, but life lived with others in family and community. Thomas concludes that Christ’s teaching, “love thy neighbor,” is a principle of the natural law, known through nature (ST I–II, 100, 3, 1). Not all of the natural law falls under these self-evident principles, which everybody can know. “Every man judges instantly of its own accord” that one must not murder. But not everyone knows without being taught that it is right to respect the aged. And, about other things, such as not to take the name of the Lord in vain, Divine (i.e., biblical) instruction is needed, for that knowledge is not strictly natural either (ST I–II, 100, 1). About such basics as murder, theft, adultery, and the like, once the practical intellect recognizes the nature of humanity, the nature of property, and the nature of marriage, then every rational man or woman will recognize what is morally demanded in each particular situation. Thomas calls this recognition synderesis, the capacity to recognize the principles called for in particular situations. Synderesis is a virtually universal capacity. Conscience is the way we apply synderesis to particular circumstances. An example may be helpful, one that points out that while normal humans cannot err regarding the first principles of the natural law, for instance, that it is wrong to debase the value of human life, it is possible to err in particular circumstances, and over a long period of time. The reason long-term error is possible is that natural law is applied according to what is called a practical syllogism, with major and minor premise. We don’t think about it this way because it appears so simple, but the act of applying the natural law can be reconstructed in the following fashion: A. Do good, avoid evil. (This is a major premise, for it is always already known. While it is a conceptual truth, like the whole is greater than any one of its parts, its truth also depends upon the nature of the world; this is implicit in Thomistic realism.13 ) B. Do not murder or otherwise degrade and debase human life. (This too is a major premise, not strictly a conceptual truth, but known by

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all rational human beings because we are embodied, and able to feel the suffering of others like ourselves, a point elaborated shortly. This is the basis for our knowledge of the truth of “love thy neighbor as thyself.”) C. Do not practice segregation by race or any other invidious distinction, as it degrades and debases those against whom it is directed. (This is a minor premise in the practical syllogism, and it is possible not just for individuals, but for entire societies, cultures, and historical eras to get this wrong, generally because they fail to recognize the full humanity of those against whom segregation or other demeaning practices are directed.)

Here is why the natural law is so often violated, even though people know (indeed, cannot avoid knowing) its principles. I have suggested that entire societies may fail to recognize the full humanity of others, but Thomas comes closer to the truth when he refers to the “evil disposition of nature” that may lie behind this failure of recognition. We may say that as to the first general principles the natural law is the same for all both as to rectitude and to knowledge. But as to certain particulars which are, as it were, conclusions of these general principles, it is the same for all in most [cases], both as to rectitude and as to knowledge; yet in a few cases it can fail both as to rectitude . . . and also as to knowledge, since some people have a perverted reason due to passion or due to evil habit or due to an evil disposition of nature; thus, as Julius Caesar recounts in The Gallic Wars, formerly among the Germans theft was not considered wrong even though it is expressly contrary to the natural law. (ST I–II, 76, 1)

Not just ignorance, but a perverse disposition, reason having become wicked, may actually encourage someone to improperly apply the natural law. But even in this worst case, Thomas is referring to application, the minor premise, the realm of conscience, not the major premise, the realm of the knowledge known as synderesis. In other words, someone can so misunderstand the minor premise that it reaches back to pervert the major premise as well, insofar as he or she fails to understand

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that stealing is stealing when you steal from X, and murder is murder when you murder Y. During corrupt eras, in which entire societies practiced segregation, for example, it was almost always the case that some people saw and stated the truth of the natural law. Some people acted on this truth. They lived their conscience. Call these people civil rights workers, or simply ordinary citizens who lived according to the natural law. In any case, those who practiced segregation did not operate in a moral vacuum; they were presented with other voices, other choices that they chose to ignore. For this reason, segregationists were morally responsible for their acts of omission and commission, even if, for example, a white person simply grew up in the segregated American South and participated in the system without objection. “As Thomas explains, if conscience errs from an ignorance that is either willed directly or willed indirectly through negligence, then it does not excuse the will” (Doolan 2001, 139; ST I–II, 19, 6). Connaturality and love of knowledge

Less frequently addressed—at least until Jacques Maritain made it the centerpiece of his reinterpretation of Thomism—Thomas argues that we may know the natural law through a process called connaturality, a practice to which he gives several names, such as “affective cognition” (ST I, 64, 1; ST I–II, 97, 2, 2) and “judgment by inclination” (ST I, 1, 6). Connaturality is a type of wisdom that stems from love (amor) of goodness that is itself a gift of the Holy Spirit (ST II–II, 45, 2). However, it is not difficult to interpret connaturality in a more secular vein. Connaturality, Thomas argues, is a type of love of friendship (amor amicitiae) that is characterized by a mutual indwelling (mutua inhaesio), in which the thing known exists somehow in the lover, and the lover in the thing known (ST I–II, 28, 2). Seen from this perspective, connaturality is the complete realization of Thomistic realism. In speculative reason, I receive the form of the object and so virtually become the object, much as Aristotle describes. In affective cognition through connaturality,

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the process is a two-way street. When the heart of the one who loves to know melts like the heart of the lover, the one who loves to know not only becomes open to the other, he becomes liquid (liquefacto) himself—able to take the form of the other, as a fluid takes the form of its container. If Aquinas sounds more like a poet than a philosopher here, then a couple of concrete examples may be helpful. In loving music, one understands music most profoundly by becoming musical. In loving honor, one understands honorable actions best and most thoroughly by becoming honorable.14 I know something or someone best when part of me becomes an instance of the other. As far as human love is concerned, I become the other while remaining irredeemably myself. Hard to explain; anyone who has fallen desperately in love will know what I mean. Maritain develops this line of thought further under the category of amour fou, or mad love. Connaturality is perhaps best understood as the habit of truly good men and women, who naturally love what is true and right, want to do it, feeling joy when they do so. Connaturality does not seem to require the Divine inspiration of the Holy Spirit, though such inspiration may be a great help. The advantage of connaturality is that it is immediate. One does not have to think; one knows the right thing to do, and loves to do it. Taki Suto (2004) explains connaturality this way. The perfect use of reason in moral knowledge is to deduce the conclusion of a practical syllogism having a principle of the natural law as its major premise. Moral knowledge obtained through connaturality, on the other hand, merely says “Do this” or “Do that” but does not ask “Why” at the moment of obtaining the knowledge. The connatural knowledge, however, embodies the principles of natural law in some manner and, because of this fact, the agent would be able to explain why he did what he did, if he were asked later, either by himself alone or with the help of instruction by someone else. Moreover, this sort of knowledge plays an important role in our daily moral life. Thanks to this knowledge, we can accomplish morally right actions without hesitation, immediately, reliably, and even with pleasure. For instance, the action of saving a drowning child sometimes may come too late if one deliberates about the importance of life, the emergency of the

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situation, his swimming ability, or the danger involved in rescue. The action could be effective only with immediate and almost automatic decision and exercise. The perfect use of reason does not ensure the execution of the action, but connatural knowledge does since it is the appetitive element or the desire that makes the very knowledge available for the agent. (64)

Because actions taken under the influence of connaturality can be discussed and explained under the practical syllogism, connaturality and the practical syllogism reinforce each other; indeed, they need each other—connaturality, which might best be translated today as moral intuition, serving to provide the practical syllogism with an intuitive and loving boost. As importantly, we see that in addition to loving what is good and right, good men and women love knowledge; not necessarily abstract intellectual knowledge, for that is a matter of predilection and ability, but avoiding willful ignorance of all the badness in the world. To ignore (i.e., be willfully ignorant of) the suffering of others, the hurt and disrespect to others’ feelings that seems built into so much of everyday life, that too runs counter to the natural law, which tells us to open our eyes and look around. Pursuing sociability and knowledge, requirements of the natural law, obliges us to look around at what is happening to others (ST I–II, 94, 2). One can reduce Aquinas’s teachings to three lessons, even if that is not the whole story: Preserve life Parental responsibility for rearing and educating children Pursue knowledge and sociability

About the last lesson, Howard Kainz (2004, 22) says that “this might be interpreted minimally as social consciousness, maximally as love.” Love not only of others, but of the knowledge of what others are going through. In one version of the legend of the Holy Grail, the vessel belongs to the seeker who first asks its guardian, a king paralyzed by a painful wound, “[w]hat are you going through?” (Weil 1977, 51). That knowledge

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requires paying attention to others. Attention turns us from ourselves, opening us to the experiences of other people. One might almost call that love. Certainly it is a form of knowledge too little practiced. Here we see the irrelevance of an objection by Leo Strauss, directed against Thomas. Strauss (1999, 139–159) argues that Thomas’s (ST I, 79, 12) account of how the principles of natural law are originally impressed on conscience (synderesis) through a direct experience of nature leaves scant room for reflective consideration of past experience or practical exigencies, no room at all for discursive deliberation in which the wisdom of others might be sifted and weighted, and no time for prudential self-assessment or inner critique (Schneck 2004, 19). In other words, natural law is not only without speech, but beyond history. Strauss is mistaken in two respects. First, our knowledge of basic goods for Thomas is profoundly social because basic goods themselves are social, shared with others, indeed conceivable only as shared experience. For example, one could never learn what the good of preserving community means without years of experience living in a community. Indeed, one could never learn this good without being able to share in the experience of generations who have passed this good down to us as culture and institutions. Not just how one learns, but the content of what is learned, makes a difference in assessing whether it is “discursive.” Or rather, some things are only learned in a discursive manner, no matter how one characterizes the original encounter with the first principle. Second, we see that this primary experience of the natural law, in its most immediate form, connaturality, while originating as a singular direct experience of nature, is subject to explication, discussion, and discourse. That the original experience is nonverbal does not mean that it is not subject to dialectic and discourse. As Suto (2004, 64) reminds us, one reason we know that connatural knowledge embodies the principles of natural law is because a person who acted intuitively on this basis would be able to explain his or her act in discourse with others were he or she called upon to do so. Some would be more fluent at

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doing so than others, some would need to be drawn out (what Socrates called maieutic), but almost all could presumably put their intuition into words. However, the claim that the immediate experience of the natural law is always social, and always subject to the dialectic, remains a little abstract. The original experience of natural law is perhaps best seen under the horizon of love—not just love of doing the right thing, but love of others with whom we live. In connaturality they become one. An obsolete metaphysics?

The most frequent objection to Thomistic natural law is that it relies on an obsolete, Aristotelian metaphysics, in which one can speak meaningfully about natural purposes and goals, as though humans have a given nature. Thomas puts it this way in comparing the connatural love of a heavy body for the center of the earth and the connatural love of the knower for the good: “Thus the connaturality of a heavy body toward the center is by reason of its heaviness and can be called natural love. In like manner, the connaturality of the sensitive appetite or of the will to some good . . . is called sensitive love” (ST I–II, 26, 1). To this application of Aristotelian metaphysics to human action, Kai Nielsen (1988) replies, The natural moral law theory only makes sense in terms of an acceptance of medieval physics and cosmology. If we give up the view that the universe is purposive and that all motions are just so many attempts to reach the changeless, we must give up natural moral law theories. One might say, as a criticism of the Thomistic doctrine of natural moral law, that since medieval physics is false then it follows that natural moral law theory must be false. (212)

The simplest response may be the best. While important aspects of medieval (read Aristotelian) metaphysics and cosmology are false, others remain valid. Nussbaum’s (2001) explication of Aristotle’s concept of formal cause, once we understand that he is really talking about a subtle typology, one not misled by superficial differences and changes, reveals that the concept still

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makes sense, even if we might choose to give it a different name. To be sure, final cause is today generally considered bad explanation in physics, chemistry, and most of biology, including evolution (Gould 1980, 19–46). Even if one wished to ban the concept of final cause from the natural sciences altogether, it it would arguably retain a central place in the human sciences. For what are the five human goods but a list of the essential means and ends by which humans are able to realize their final cause, their telos as human beings? It is good to live all the ages of our lives—from childhood through old age—in a community of others who care for us, and whom we will love and care for in return. In this community, we will take care to respect each other, fostering our own and others’ children, protecting the community, while working to provision ourselves and others, but not hoarding our plenty in times of community distress. You might say that all this is obvious, and perhaps it is. If only it were practiced more widely. Currently, more than half the world fails to follow these basic teachings. You might say that the meanings of these terms have changed since Thomas’s time. The meaning of these terms changes with every generation. The natural law is no static constitution; there is no doctrine of “original intent” to be interpreted by a court of natural lawyers. The meaning and application of the natural law will change constantly—not in its core precepts, but its application and interpretation. And who will do the interpreting? The community—you, me, and everyone we know.

Narrative, Reason, and the Natural Law: Comparing Stories Imagine, for a moment, what a spokesman for the German robbers might say. Perhaps not the German robbers referred to by Thomas, but a nobler group of thieves and warriors. These warriors live not according to the natural law, and certainly not according to that great summary of the Decalogue, “Thou shalt love the Lord thy God . . . and thou shalt love thy neighbor as thyself” (Luke 10:27). Instead, they live according to

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their own fierce ethic, emphasizing death before dishonor, contempt for the weak, respect for the strong, striving “always to be the best.” This last phrase was the motto of the ancient Greek agonal culture, as it is called, a culture in which competition was not so much the highest value, as it was the standard by which all other values were measured. That ancient sourcebook of Western culture, The Iliad, is exemplary. One might, with considerable corruption of the original intent, transfer this set of values to a competitive capitalist economy. “Greed is good,” the mantra of Gordon Gekko, protagonist of the 1987 movie Wall Street, is the last stage in the devolution of this ethic. Or so one would hope.15 What makes the Thomistic narrative, and the ethic it embodies, superior? One could argue that only it refers to humanity’s original experience of nature, but if you do not believe in that original experience, or do not believe that knowledge of this experience is binding, then such an argument is unlikely to be convincing. A better argument, in this case, is that the Thomistic narrative reflects a more complex and subtler set of virtues. These include the virtues of a warrior; for, in the real world in which we live, societies must defend themselves against attack. The great virtue of the Thomistic narrative, however, is that it goes on to include a much wider range of human virtues, from caring for children to performing the hard but unglamorous work of sustaining the everyday life of a community. This too takes courage. Above all, Thomas understands the virtue of misericordia, usually translated as pity. Here is the sharp but subtle difference that makes all the difference between Thomas and Aristotle.16 Pity, says Aquinas, is grief or sorrow over someone else’s distress, precisely insofar as one understands the other’s distress as starkly similar to one’s own. “Among the virtues that relate us to our neighbor misericordia is the greatest” (ST II–II, 30, 4). For Aristotle, the corresponding virtue is not pity but megalopsychos, the characteristic virtue of the big-souled man, potent enough to confer benefits, sufficiently superior so that he need never be in a position to receive them (N. Ethics, 1124b-9–10). Or as MacIntyre (1999) puts it,

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We recognize here an illusion of self-sufficiency, an illusion shared by Aristotle, that is all too characteristic of the rich and powerful in many times and places, an illusion that plays its part in excluding them from certain types of communal relationships. (127)

Megalopsychos is what the heroic ethic looks like when it is extended from the battlefield to the polis, in this case the city-state of 5,000 admired by Aristotle, the polis of the kalos kagathos, the beautiful and the good, always the aristocratic ideal. Even today, it is hardly a compliment to say of someone “I pity you.” And yet it is precisely this virtue that Thomas would foster, both in the giver and the receiver. For Thomas, only in communities of mutual need can the care we extend toward others stem from a genuine identification with their suffering, what is called pity or compassion. This care might be called love. Overcoming this blind spot took another tradition, one centered in Jerusalem, not Athens. In fact, this blind spot was not completely absent in Athens, even if it was lacking in her philosophers. One of several reasons Antigone would bury her brother is simple pity for his naked humiliation in death (Sophocles, Antigone, lines 28–32; 422–426).17 The ethic of Aquinas is superior to the heroic ethic because it draws on a wider range of subtler virtues, virtues that weave the citizens of a community together, rather than pretending to an autonomy that does not exist, the legacy of the Homeric warrior kept alive for millennia. Can I prove this to you? No, but I have characterized the only type of argument that really works in these matters: comparing stories (Levine 1998). When we ethically judge, praise, or blame—and this applies even more clearly when we are comparing ethical systems, such as Thomistic natural law versus heroic ethics, even in its civilized Aristotelian version—we are not putting an instance under a universal principle. We do that, according to Thomas, in an almost automatic fashion, when we apply the natural law to a particular case (and even that I will question). But when we are questioning the natural law itself, particularly the degree to which it is “natural,” the syllogistic method makes no sense. What universal principle or major premise could we use in

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this case? The direct experience of natural law? That would be cheating, assuming an experience that is in doubt. Instead, we are comparing narratives, in which I am trying to show you that my favorite narrative is a more compelling account of life as it is and should be lived than another. In doing this, I am bringing narrative to bear on your inclinationes naturales, as Thomas calls them. By this term, he means the tendency of a person to act in accordance with his or her nature (ST I–II, 94, 2). A person’s inclinations are in accord with his or her status as animal and rational being. Incidentally, I do not follow Jacques Maritain (1951, 91–92) in interpreting inclinations (habet naturalem inclinationem) as the way we learn the natural law, akin to connaturality (ST I–II, 94, 2). It would be more accurate to say that inclinations are the natural law, or rather its natural basis. In trusting your inclinationes naturales, I am trusting that my explication will bring together your deepest, but as yet unformed, beliefs about the good life, invoking such categories as pity, community, and the way in which acknowledged dependence is a virtue in order to do so. In other words, I am assuming that you know most of these things, but that you have not put them together, possibly because aspects of our culture and way of life are not conducive to this knowledge. Just one example: Donald Trump remains on many Most Admired Americans lists.18 We praise goodness, but admire power and wild self-assertion. At the same time, I am demonstrating that a widely admired narrative, Aristotle’s Nicomachean Ethics, fails to recognize this important aspect of human existence, standing closer to the Homeric ethic of ancient Greece than is commonly recognized. Trying to show you that my narrative or story actually fits your inclinationes naturales about ethics better than another is the only way we can possibly proceed at this level. There is nothing to deduce that would not assume what is already in doubt, nothing to assert that would remain more than an assertion. The argument I am making here is not one that would have been likely to occur in the world in which Thomas lived and wrote. The argument here only arises in a world

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of competing master narratives, as they might be called, in which the question of whether man has a nature to be discovered, and if so whether there might be several quite different ways to live out this narrative, becomes a real question. Nevertheless, my approach of trying to convince you that my story about Thomas, misericordia, and the type of community that results fits your inclinationes naturales assumes precisely what Thomas assumed: reason can be brought to bear on nature. Narrative and nature

Instead of referring to reason brought to bear on nature, I call it narrative brought to bear on nature. That is, I refer to the way in which Thomas’s account of the human good actually fits your inclinationes naturales—your experiences of the human goods, including (but not limited to) the five human goods proposed by Thomas. “At minimum, a story is a purpose transformed into enough experience to allow that purpose to understand itself a little better” (Rosenthal 1987, 13). The term “purpose” is another word for telos, the human goal of the human good. A good narrative puts together an inchoate inclination with experience, so that we might come to see what we have learned by sharing it with others, who will have stories of their own to tell. If we are fortunate, the storytelling will continue until a tentative, always temporary, collective version is agreed upon. This is how the natural law develops, even if we never call it that, but something like “the values of our society.” Why refer to our knowledge of the natural law in terms of narrative, not reason? There are several reasons. The first is given by the Protestant theologian Reinhold Niebuhr (1988), who argues that Thomistic natural law remains inextricably bound to a medieval worldview, while remaining overconfident in reason. For Aquinas, The Fall robbed man of grace, but left him with reason. For Niebuhr, that is too easy. The Fall corrupted reason itself, rendering reason arrogant and self-satisfied. Ours is not an incomplete world yearning for completion. Ours

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is a tragic world, filled with arrogance, false eternals, and bogus absolutes. In addition to a certain skepticism about reason per se, narrative seems the appropriate language to talk about reason. The use of narrative that I have practiced assumes that inclinationes naturales exist, and that they are roughly as Thomas described: basic intuitions about right and wrong that can generally (not always) be relied upon, especially when they are subject to the discussion of the community. The process doesn’t always work right, not only when the community shares a perverse disposition (the German robbers), but also when it is demoralized, as my story about the local school board in chapter 1 reveals. One hopes that the cultivation and tutoring of a community’s intuitions by means of conversations, stories, and shared work directed toward the common good (e.g., Habitat for Humanity) would foster a more caring and imaginative society as well. Richard Rorty (1989, 2001), as we shall see in a subsequent chapter, has great confidence in the ability of novels to shape the empathic imagination. I do not disagree, but place a greater emphasis on joint activities and shared conversations. These strategies are not antithetical. Today, we live in a world far more removed from the original natural experience than in the medieval world of Thomas’s day. This is bad insofar as it renders our culture less conducive to the collective conversation, stories, and shared work needed to transform healthy inclinationes naturales into a caring and imaginative basis for the natural law. However, it also creates new possibilities, for instead of one original natural experience, there are several—indeed, almost too many—competing experiences of the good life for men and/or women. Consider, for example, the following stories: The warrior for a just cause The committed husband and family man The committed wife and mother The man or woman who sacrifices everything for his or her art, or science

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One who suffers discrimination and responds by creating a community of dignity with others The secular or religious saint

In light of this cultural caravanserai, the most persuasive approach is to tell stories that bring together different experiences so that someone might come to say, “Yes, I recognize myself in that story; I just didn’t realize we were talking about the natural law.” Or, “No, now that I think of it, aspects of my experience don’t fit the natural law. But I still value these aspects, so I’m not sure what to do or say.” This intellectual strategy, for that is what it is, respects the leading characteristic of the natural law: that we possess it even before we know it. It also respects the intelligence and dignity of those it would convince. As we shall see in the next chapter, Jacques Maritain came to rely on Thomas in arguing that sometimes the fellowship and peace of the community are more important than whether the community adheres to the details of the natural law, a point made explicitly by Thomas (ST II–II 10, 11; Maritain 1951, 169). Notice the role played by narrative in this account. Narrative does not discover the natural law. Natural law is known through our inclinationes naturales, as Thomas calls them. Narrative is how we make these inclinations consciously present to ourselves, and so subject to discourse with others. These others include family, friends, community, and history. Important, particularly as we enter into a global world (or rather, become more aware that we are already there), is the way in which discourse makes these inclinations available to different communities, including less powerful communities, so that they might have a say in the formulation of our inclinations. Even if our inclinations are at bottom identical, which would not be surprising given that they are the substance of the natural law, inclinations may take different narrative form. It is not good when my narrative of the natural law speaks over yours. Natural law can become a cover for domination even with the best intent. Edmund Burke illustrates one of these ways,

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in which the ancient order is assumed to be tantamount to the natural order. This from a man who understood and condemned colonial domination. The school board discussed in chapter 1 suggests another way in which domination may be veiled: when cultural relativism leads to the demoralization of the powerful, who become morally paralyzed when confronted with indigenous cultures abusing their own. Inclination doesn’t speak in a single voice, even as it speaks to all. Even if our inclinations are identical (another way of saying that every heart is inscribed with the same natural law), we will translate our inclinations into different stories depending upon our circumstances. A proper interpretation of the natural law for this time and place will make room for the narratives (inclinations put into words) of all those affected by the basic arrangements of society—that is, those arrangements touched upon by the natural law. If we don’t do so, then we are at risk of ending up like Edmund Burke, a man genuinely committed to the application of natural law to all peoples, but who could see almost no difference between natural law and the ancient practices of his own society.

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Chapter

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Once called the “Red Christian” for his leftist leanings in later years, Jacques Maritain is the twentieth century’s most wellknown Thomist. While he might quarrel with the “most well known” description for the sake of modesty, Maritain would not deny the affiliation. Interesting and important is how Maritain came to Thomas and the natural law, through listening to Henri Bergson’s lectures on phenomenology. Indeed, the story goes that Maritain and Raïssa, his fiancée, had decided to kill themselves if they could not find a definite answer to the meaning of life. They found it first not in Thomas’s teachings, but in Bergson’s. As the new school year of 1901–1902 began, their search was rewarded when they crossed the street from the Sorbonne to the Collège de France to hear Henri Bergson lecture. In Bergson’s lectures they heard the kernel of the message they had been waiting for. For they understood him to say, as Raïssa Maritain (1947) put it, “that we could truly, absolutely, know what is.” Bergson was speaking not of intelligence or reason, but a faculty that he called intuition that was opposed to the intellect and its concepts. Jacques and Raïssa married on November 26, 1904.1

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Presumably Bergson lectured about what he published in 1903, that one could find an absolute nonrational type of knowledge through intuition. By intuition is meant the kind of intellectual sympathy by which one places oneself within an object in order to coincide with what is unique in it and consequently inexpressible . . . . There is one reality, at least, which we all seize from within, by intuition and not by simple analysis. It is our own personality in its flowing through time—our self which endures . . . . What is relative is the symbolic knowledge by pre-existing concepts, which proceeds from the fixed to the moving, and not the intuitive knowledge which installs itself in that which is moving and adopts the very life of things. This intuition attains the absolute. (Bergson 1955, 9–11)

Had Maritain stopped with Bergson, natural law would be composed solely of intuition, a type of innate knowledge as indubitable as any feeling, such as “I feel sad” or “I feel happy,” but extending no further than the self. Maritain did not stop there, and while he remains more “Bergsonian” than many natural law theorists would admit, Maritain is best understood as combining Bergson with classical realism, the belief that one can have genuine access to the things (sometimes called being) of this world. The experiencing subject is not all there is. There is something exterior to the subject that is real to be experienced, and whose experience is valuable, enriching the subject. Maritain devoted much of his efforts to the important task of moving from intuition to objective world and back again. Nevertheless, some of Maritain’s most well-known statements about the natural law reflect the influence of Bergson, or at least of Thomas Aquinas as read through Bergson. Not every interpreter of Maritain would emphasize the influence of phenomenology as much as I. In fact, much of what Maritain has to say about intuition and the natural law is valuable in its own right, and need not be attributed to Thomas in order to give it the sanction of the Angelic Doctor. The example of “inclination” was mentioned in the last chapter, in which it was argued that Maritain (1951,

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90–92) transforms what is for Thomas the medium of the natural law into the intuition by which we know it (ST I–II, 94, 2). They are not the same, and there is no point in pretending they are in order to suggest a dubious continuity with Thomas. The continuity between Maritain and Thomas is real, but it exists at the level of shared metaphysical realism, as well as a shared belief in Providence, God’s presence in history, though precisely how humans share in divine Providence differs between Thomas and Maritain. Maritain is the theorist who makes natural law and a version of pluralist democracy compatible. For Maritain, it was a long, hard struggle to embrace the twentieth century. The pull of a medieval resacralized world was strong, but not as strong as his fear of a new pagan order unleashed by Hitler and Stalin.

Poetry Maritain was fascinated with poetry because poetry (perhaps surprisingly, given its frequent emphasis on feeling) steers us away from the inner-world, and toward the shared world of people and things. Poetry is the intuition of (everyday) being. Contrary to a certain stereotype, good poetry takes the existence of people and things seriously. John Hittinger has a lovely quote from Nathaniel Hawthorne about some summer squash he planted. While not technically poetry, Hawthorne’s prose captures the poetic attitude toward the world that Maritain would embrace. Gazing at them, I felt that, by my agency, something worthwhile living for had been done. A new substance was born into the world. They were real and tangible existences, which the mind could seize hold of and rejoice in.

Hittinger continues. Hawthorne surely has the germ of Maritain’s intuition of being in this appreciation of squash’s “victorious thrust over nothingness”. . . . After witnessing the loss of the world in abstraction, Hawthorne

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attends to the lowly squash and savors the glory of its being. Maritain, I think, would be delighted to have these prophetic poets return us to the savor of being as they call forth that intuition. (Hittinger 2002, 210–211)2

Whereas Bergson understands the intuition of being as the experience of the subject experiencing the world, Maritain involves the experiencing subject directly in the world. Thomas also turns us toward the world, but he does so via abstract universals. Maritain’s realism does not deny abstract universals, but his tone is different, as are his examples. For Maritain, knowledge is the knowledge of the artist. Differing with Plato in the Republic, who famously held that the artists’ access to the truth was third-order, sporadic, and unreliable, Maritain believes that the true artist possesses an insight into the truth of the object, much as Thomas held that the uneducated person may be virtuous. The uneducated person may be virtuous, even though he or she does not understand virtue, because he or she intuitively knows the right thing to do through the faculty of connaturality (ST I, 6, 3). In a related fashion, the artist has an intensified sensitivity to the world, whose little piece of truth he or she grasps through a connatural union with the art object. That is poetic experience or poetic knowledge, where subjectivity is not grasped as an object but as a source . . . . The more deeply poetry becomes conscious of itself, the more deeply it becomes conscious also of its power to know, and of the mysterious movement by which . . . it draws near to the sources of being. (Maritain 1944, 387)

Unlike Bergson, who would confine knowledge to the experiencing self, Maritain would send the experiencing self into the world, where it is enriched by an encounter with being, which is best defined as the simple and wondrous things of the world, such as Hawthorne’s squash. In The Situation of Poetry, for example, Maritain (1955a) writes that the poet’s

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Intuition is an obscure grasping of the self and things together in a knowledge by union or by connaturality which is not completed . . . except in the work . . . . Here is knowledge that is different enough from what we commonly called knowledge, and knowledge which is not expressible in ideas and in judgments, but which is rather experience than knowledge. (51)

Restated somewhat more trenchantly, Maritain writes in Creative Intuition in Art and Poetry that “the content of poetic intuition is both the reality of the things of the world and the subjectivity of the poet” (Maritain 1955b, 90). Maritain not only acknowledges the influences of the greater world on the poet’s subjectivity, but would enrich the poet, including the poet in us all, by encouraging us to encounter the reality of the world with the same immediacy with which Bergson would have us encounter the reality of the self. Kai Nielsen (1988, 212) says that to treat knowledge of the natural law as akin to poetry is to “retreat into a kind of obscurity that makes philosophical appraisal impossible.” It’s not knowledge, but something else; the type of thing about which Ludwig Wittgenstein (2007, proposition 7) says we must keep silent. This is incorrect. As argued in the chapter on Thomas, we can compare narratives, in which I try to show you that my favorite narrative is a more compelling account of life as it is and should be lived than another. In doing this I am bringing narrative to bear on your inclinationes naturales, trusting that my story brings together your intuitions about the good life better than another. Expressed another way, about such matters as the natural law, philosophical proof is impossible. Not proof, but considered reflection—what is ordinarily called reason—is the proper human goal. What I call considered reflection, Maritain (2001, 22) called after-knowledge. “Moral philosophy is reflective knowledge, a sort of after-knowledge.” For Maritain (2001, 21), the fact that natural law is known through inclination means that “the precepts of Natural Law are known in an undemonstrable manner.” The fact that men and women are unable to rationally justify their most fundamental moral beliefs is evidence not of the

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irrationality of their beliefs, but, on the contrary, it is evidence “of their essential naturality and therefore of their greater validity, and of their more than human rationality” (Maritain 2001, 21). The “after-knowledge” of the natural law comes in whenever we try to systematize natural law—that is, subject our connatural intuitions to rational principles. After-knowledge also comes into play whenever we discuss the natural law with others, as we should, as well as whenever we look back over time in order to see if our inclinations are to be trusted. There is something both wonderful and frightening in Maritain’s confidence. About the details of the natural law, Maritain was not so concerned, but about the existence of the natural law, and the connatural way it is known, he never questioned or wavered. His respect for “after-knowledge” grew too, a development that may be understood in a couple of ways. First, after-knowledge may itself become part of a pluralistic, democratic process. This is the implication of Man and the State (1951). Second, Maritain’s own after-knowledge about how to locate natural law in a world that had moved from Saint Thomas to Hitler to the Cold War required both intellectual and moral development on his part. In particular, it required that he reinterpret his characteristic doctrine of personalism. More on that shortly. For now, let us devote ourselves to love.

Love Love and friendship are the highest things in human life, according to Maritain. However, rather than idealizing that Christian love generally rendered as agape, a mild brotherly love, Maritain writes of l’amour fou. Agape is the term Christ uses for love when he summarizes the Ten Commandments as love God with all your heart, and love your neighbor as yourself (Matthew 22:37–41). L’amour fou means quite literally “mad love,” and translated from everyday French into everyday English might best be rendered as crazy with love, drawn to one’s beloved as a moth to a flame. Maritain means something only a little different—a type of boundless, limitless love, in which I give myself wholly and completely to the other

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person with nothing left over for myself. In love, but also in close friendships, “it is the very person of the lover which is the Gift” (Maritain 1984, 221). Here, says Maritain, resides the great mystery of love, for while in love I give myself to the other, somehow I continue to remain whole. I have not lost, but gained. I have abandoned myself to the other, but not become the other; if I had, then love would be pointless, for there would be no other left to love. Love longs for union, but lives on separation and difference. In love I abandon myself, and in some remarkable way become more myself than I was before (Maritain 1984, 222–224). Someone might argue that the feeling of having abandoned the self, only to have become more oneself than ever before, has the quality of an illusion, as in “that’s only your endorphins talking.” Maritain would disagree. Love is not something we create. Love is something we discover; it is part of the “ontological perfection of nature” (Maritain 1984, 223–224). In other words, love has the status that classical realism would accord to its objects. This makes sense; for if we think about the objects of realism as relationships between objects, then what relationship is more real and intense than love? Gravity, I suppose, but that is reality in another, albeit equally real, dimension. The fact that love is part of the “ontological perfection of nature” is ironic, for Maritain believes that most failures in life— certainly the most severe, lasting, and painful failures—are those of love. Generally, these failures take the form of loving wrongly (e.g., having an affair while married), betraying a friend, or loving someone or something that is not truly worthy of our love. This includes such obviously unworthy candidates as money, but also some people. Furthermore, even those who are worthy of our love (and this includes most people, for humans are frail and driven creatures, liable to love whom they will) risk being transformed into idols if our love is not expressed within the framework of a community whose members care for each other as friends. Or as Maritain puts it, “[H]uman mad, boundless love can radiate within a life morally upright and submissive to the order of charity. It can likewise radiate . . . within a life

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of sin” (Maritain 1984, 224).3 In most cases, the community within which one loves will make the difference. More on this point later in the chapter. It is said that on his deathbed, Saint Thomas taught about Solomon’s Song of Songs, a sublime poem of love. Unfortunately, no transcription of this teaching survives (almost all Thomas’s teachings were transcribed; as was the custom, he dictated to scribes). Maritain, the twentieth century’s greatest student of Thomas, wrote the last chapter of his last book on the Song of Songs. One might call it a translation, except that Maritain read no Hebrew. Instead, he said he wanted a French version that filled two needs. As far as it brings to the spirit, I wanted its prophetically Christian meaning to appear explicitly and markedly enough to satisfy me in prayer. As far as what it brings to the ear, I wanted it to appear to me in the form of a French poem that would spring from a single, continuous thrust, in its incomparable beauty, thus satisfying my need for poetry better than generally do the literal translations.4

A remarkable aspect of the “translation” is the way in which it renders love more physical. Five times Maritain translates what in the English language versions is usually described simply as “love,” as “caresses” (Le Cantique des cantiques, 2:5). Four times he renders comparisons between love and wine as comparisons between caresses and intoxication, once the intoxication of mad wine (“Le Cantique des cantiques,” 1:2; Dunaway 2002, 320–321). Maritain’s approach to the Song of Songs epitomizes the role of insight over discursive knowledge in his approach to the natural law. Indeed, his great contribution is to have transformed Thomas’s notion of connatural knowledge into creative love. Unlike some of his other “transformations” of Thomas, this transformation is fitting, for it is in accord with the meaning of the term given by Thomas. By connaturality, Thomas means not merely the immediate knowledge of the right thing to do, but the habit of wanting, even loving, to do the right thing. One is reminded here of Aristotle on virtue (one is truly virtuous

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only when doing the right thing is easy and pleasurable), but an examination of the text reveals that Thomas has the inspiration of the Holy Spirit in mind (ST I–II, 45, 2; Suto 2004). “Thus art, like love, proceeds from a spontaneous instinct, and must be cultivated like friendship” (Maritain 1974, 41). In the same way, we cultivate our knowledge of the natural law through love and friendship. Through love and friendship we develop the capacities to creatively give the gift of ourselves, and so move beyond “do unto others as you would have them do unto you,” a relationship that retains the quality of a social contract. Instead, we come to see ourselves, our longing, our efforts, our caring as the gift we give to others. This is the great creative act that almost all are capable of. When we feel this love, then knowing and following the natural law is easy. Not about the details, for as Emmanuel Levinas (1969) has taught us, we shall never know exactly what the other needs, and never be able to provide it.5 But since the natural law is not about details, but about the basics, love is often enough to see us through. Here, by the way, we see that Reinhold Niebuhr is mistaken in arguing that what he calls the Catholic teaching on natural law fails to grant sufficient primacy to love over justice (1988, 244). He is referring specifically to Thomas, but since Maritain is the twentieth century’s most important Thomist, and Maritain places love at the very center of his teaching, it is hard to see how Niebuhr could fail to see in Maritain anything but the fulfillment of Niebuhr’s own claim that “nothing short of a complete love in which each life affirms the interests of the other” is the fulfillment of human freedom in natural law (Niebuhr 1998, 224). Eros and evil

Sigmund Freud (1930, 108–110) believed that romantic love, Eros, wanted privacy, to be left to itself. In the intensity of their love, lovers would possess each other, leaving nothing left over for the world. Maritain holds that human love, even l’amour fou, ideally takes place within a human community that includes the love of God.

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Knowing our friends, our spouses, or our Redeemer activates the connatural mode of knowledge that also enables us to imitate the Divine Artist as poets, painters, composers, or even perceptive interpreters. (Dunaway 2002, 322)

Love, for Maritain, is creative; it wants to build the world, forge human links, foster children, family, communities. The madness that l’amour fou shares with Eros is the experience that abandonment of the self brings—a loss that in the end is a gain. Nevertheless, there is a difference. L’amour fou lacks the selfishness of Eros that has been its hallmark since Plato, the terrible sense of incompleteness, finding fulfillment only in possessive union with one’s beloved. Socrates’ mythical account of the parents of Eros captures this selfishness perfectly. Poverty (penia) is his mother, Contrivance (poros) his father. For this reason, Eros is always poor, and far from being sensitive and beautiful, Eros is hard, weather-beaten, shoeless, and homeless, taking after his mother. However, as his father’s son, he schemes to get what is beautiful. Eros is bold, clever, always devising tricks to get what he wants (Symposium 203b–e). Maritain’s l’amour fou is simply mad: mad to create, to give of itself, to love. Not to possess what it does not have, for in its madness, it has all it wants, all that it could ever need: a human way to find relief from solitude in alienating itself, Maritain’s (1984, 222) interesting term suggests not so much a loss of self, but a loss of selfishness in love. Yet, if Eros and l’amour fou are not identical, they are similar in an important respect. Repressed by culture and civilization, a not entirely happy prospect (for which Freud coined the term “the discontent of civilization”), Eros too is the builder of culture and civilizations. Children, community, society, and culture in all its forms are the product of Eros. Against Eros, Freud sets the Todestrieb, the death drive, which seeks destruction. In a controversial claim, Freud speculated that in the end the individual seeks his or her own death, but not before inflicting death and destruction on others.6 While Maritain posits no death drive, he understands that

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history is providential only from the perspective of eternity. In this temporal world, human goodness remains “joined to a swarming multiplication of particular evils that is the very mystery and the very motive power of struggle and progression in mankind” (Maritain 1952, 136). As Maritain writes elsewhere, the devil will contend with Christ for the history of the world. Christ will win, as he must, but the devil will have his due, and “not without losses.” In other words, “the devil hangs like a vampire on the side of history. History goes on, nonetheless, and goes on with the vampire” (Maritain 1957, 132–133).7 It is a vampire we shall never be rid of, a devil the natural law must come to terms with. Maritain’s understanding of the dark side of history, and of the claim this ominous reality makes on the natural law, reveals him to be a thinker of profound importance. More on this point later.

Personalism Maritain is a political thinker. His remarks about the devil hanging like a vampire on the train of history came in the wake of the Second World War, which he experienced as the fall of a civilization, the end of an age that began with the fall of Rome. To talk about mad love without taking into account the madness of evil would be to live in a monastery. Maritain was a man of the world, and his mature political philosophy was expressed in terms of personalism, as the teaching is known. But personalism came to mean something quite different for Maritain after the Second World War than before. For Maritain, personalism means that the human person possesses some measure of wholeness and independence, and hence dignity, prior to any involvement in society, while remaining in a fundamental sense social. The consequence is that human rights don’t come from states, or politics. Human rights come from natural law and are expressed in a personalism that respects individuality without idealizing it. Not surprisingly, personalists make a big distinction between personalism and bourgeois individualism (Amato 1975).8

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Much as liberal or bourgeois individualism does, personalism regards individuals as having rights, but the argument is different, as these rights stem from seeing each individual as the incarnation of God. Personalism is utopian, generating a social ideal that respects individuals without being individualistic, communalist, pluralist, or theist. If you can imagine quite what that looks like, you have a better imagination than I. In any case, Maritain was clear that the distance between liberalism and personalism was shorter than the distance between personalism and any of the other available options, such as Marxism. As with most utopias, personalism is most useful in generating social criticism, and the social criticism that stems from personalism asks us to focus not on ideologies, but on people and their particular moral situations, which include the pressure of material circumstances. Personalism does not deny material reality, claiming only that men and women are not reducible to it, either through their labor, their consumption, or their biochemistry. Though he has nowhere identified himself as a personalist (as far as I know), the political thought of Václav Havel (1995) is consistent with personalism, which embraces individualism and democracy, but fears for the loss of human mystery, what once was called soul. The relativization of all moral norms, the crisis of authority, the reduction of life to the pursuit of immediate material gain without regard for its general consequences—the very things Western democracy is most criticized for—do not originate in democracy but in that which modern man has lost: his transcendental anchor, and along with it the only genuine source of his responsibility and self-respect . . . . Given its fatal incorrigibility, humanity probably will have to go through many more Rwandas and Chernobyls before it understands how unbelievably shortsighted a human being can be who has forgotten that he is not God.

Another way to define personalism is in terms of the ironic consequence of bourgeois individualism. Since the Renaissance, the individual has become the autonomous center of freedom, knowledge, ethics, rights, et cetera. But this tears people from

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their older, more natural communities, leaving them materially and spiritually vulnerable to the imposition of collective forms of society, from the French Revolution to totalitarianism. This process is explained in Maritain’s (1929) Three Reformers: Luther, Descartes, Rousseau, his condemnation of the modern world, a condemnation that he would later lift to some degree. Luther creates the solitary individual, the subjective individual, not the person, who saves himself through will. “In the person of Luther and his doctrine, we are present . . . at the Advent of the Self,” says Maritain (1929, 18). Because humans, according to Luther, have no capacity for self-reformation, but are entirely dependent on faith, man’s reason is useless, his creativity pointless. All man can do, all he must do, is give himself over to faith, and he does so as an individual, standing in a singular relationship to God’s grace. But the burden is too much, as both the individual and the Church come to stand naked before the state, and collective forces generally, such as society, ideology, and money. In a word, Luther isolates the deracinated individual before his God. Such a creature will prove too weak against the simultaneously atomizing and collectivizing forces of the modern world. Descartes commits the epistemological error of “angelism.” He assumes that men and women can know as Thomas held that angels could know; through direct, unmediated comprehension, which is inherent in the thinking subject, and independent of the society and community in which he or she exists. Other errors associated with “angelism” are the assumptions that man’s first object of knowledge is his own mind (contrast this view with Thomistic realism), and that the mind is disembodied from the person, and the person from his or her place in the world. The result of a usurpation of the angelic privileges, the denaturing of human reason driven beyond the limits of its species . . . could only . . . lead us to claim for our intelligence the perfect autonomy and the perfect immanence, the absolute independence, the aseity [underived or independent existence] of the uncreated intelligence.

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Of that claim, Kant was the socialistic formulator, but the origins lie much deeper . . . it remains the secret principle of the break-up of our culture and of the disease of which the apostate West seems determined to die. (Maritain 1929, 79–81)

Descartes led modern men and women to see nature as no more than a set of essences that conform to his reason. Modern thought was becoming narcissistically bound to a single way of looking at being, as though being were the mirror of the mind. For Maritain, this “anthropocentrism” was the central evil of modern history, and the eighteenth-century philosophes such as Descartes gave anthropocentrism its full theoretical statement. All conditions of human finitude—time, space, matter, and nature— became enemies of humanity: everything must be brought under man’s dominance—society, state, religion, and the future. Bolsheviks and Republicans were in varying degrees one in seeking to erect the city of man, a city in which man, utterly alone, pridefully and unwittingly builds his own hell. (Amato 1975, 67)

Rousseau frees man from sin and conscience, and creates a nature that seems to have that old metaphysical status of an ideal, but is actually just empirical: man as he is. To be sure, Rousseau sometimes employed a classical notion of nature that refers to the essence and end of man’s being, as in parts of the First Discourse. On the other hand, devoid of any real metaphysical sense, Rousseau generally used the concept of nature as a strictly naturalistic trope to describe man’s actual material and historical situation. “This equivocal use of the concept of nature . . . produced in all of Rousseau’s thought those fundamental confusions between metaphysics and naturalism, values and science, which had vitiated all political thought since the Renaissance” (Amato 1975, 69). Furthermore, Rousseau comes to see the social contract as having no connection to nature. “Hence it follows that the first author of society is . . . the will of man, and that the birth of civil law is the destruction of natural law” (Maritain 1929, 133).

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Maritain sees in Rousseau the culmination of a dangerous dialectic between individualism and collectivism begun in the last five centuries of the modern world. Individualism, spiritually created by Luther, Descartes, and Rousseau, destroyed man’s natural and spiritual ties with other men, leaving him defenseless against the new collectivisms of state, society, economics, and ideology, which began with the French Revolution.9 The goal of both Maritain and Emmanuel Mounier, founder and editor of the journal Esprit from 1932 to 1950, was to remake the Renaissance, resacralizing the temporal order. (A generation younger than Maritain, Mounier was not Maritain’s student, but was deeply influenced by him.) It won’t happen; a point Maritain eventually came to concede, accepting new forms of democratic pluralism. One could put it even more strongly. In the Western democracies, today we live between the old, dead order and a stillborn new world, unable to break free without the God to whom Havel refers, the One whose existence reminds us that humanity is not the center of its own existence.

Absurdity, Justice, and Knowledge The risk in the West isn’t just Max Weber’s (1958) iron cage of icy polar darkness and night, a totally rationalized world, in which the last remnant of myth and magic have vanished. The risk is the absurdity engendered by the iron cage. Or as Raïssa Maritain reflected, “I would have accepted a sad life, but not one that was absurd.” (R. Maritain 1961, 69) In fact, the absurdity faced by Raïssa is not the worst thing. One has to be able to tolerate some absurdity in this world; not everything is meaningful, and meaning cannot be found in everything. Absurd cruelty is the worst thing, and humans seem quite capable of inflicting it gratuitously. It is one of the leading vampires of history. Saul Friedländer (1993, 109–111) refers to the Rausch, the intoxication of destruction, which seems to have seized Heinrich Himmler and other Nazi leaders as the goal of destroying an entire people came within their grasp.10

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Pleasure in destruction, in destroying the innocent and good because it is innocent and good, has a long history. Is this not what Milton’s Satan meant when he said simply, “Evil be thou my Good” (Paradise Lost IV, 105–110)? William Blake was not kidding when he said that Satan gets all the best lines in Paradise Lost. Satan is often an attractive figure, just as evil may be attractive, and that should be cause for deep concern. Though it was pears and not people that he destroyed, the fact that he destroyed them out of the sheer pleasure in destruction bothered Saint Augustine for years (Confessions II.III.9).11 To be sure, the Holocaust did bring something new to our knowledge of evil. More precisely put, the evil of the Holocaust is significant not only (and this would be enough) because of its scale, but because of its rationalization, a rationalization that in many respects was only apparent. This is captured in Raul Hilberg’s (1985) account of the German railways’ (Reichsbahn) schedule of fares to bring “passengers” to the concentration camps. The basic charge was the third-class fare: 4 pfennig per track kilometer. Children under 10 were transported for half this amount; those under four went free . . . . For the deportees one-way fare was payable; for the guards a round-trip ticket had to be purchased. (411)

How best to characterize such rational absurdity but with an equation? The devil (or Freud’s Todestrieb, however one would have it) + Max Weber + Kafka = the absurd horror of the modern world. This absurdity is best addressed by natural law, understood not as a rational bulwark against absurdity, but as a narrative source of meaning to set against the absurd cruelty that threatens to make mincemeat of the meaning of our lives. By the term “narrative source of meaning,” I refer to a story about the sources of human goodness, as well as the evils that threaten this goodness. One of the purposes of the natural law is to tell us a story about a good, and hence meaningful, human life, so that we have some measure of how far humans can lose their way in misbegotten search of this ideal. “Evil be thou my Good” means

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not simply that one has forgotten the good, or chooses not to do it, but that one has confused evil with good, and goodness with one’s own will, which is how Immanuel Kant defines radical evil.12 Natural law also leaves us with some markers—cairns along the path—showing us the way back to the good. Cruelty that is not obviously absurd, but instrumental, also exists. Much instrumental cruelty involves means so disproportionate to the ends, victims so irrelevant to the ends (i.e., so dehumanized), that the element of absurdity is not absent. Certainly, this fits one of Albert Camus’ (1955, 29) definitions of the absurd: “If I see a man armed only with a sword attack a group of machine guns, I shall consider his act to be absurd.” Absurdity arises in this case from the disproportion between a man’s intention and the reality he encounters. And, although Camus does not mention it, one must conclude that the absurdity works in both directions. If I see a group of men armed with machine guns attack and kill a group of civilians, I shall call their act not only evil and cruel, but also absurd. What does absurdity contribute? Not so much the desperate need for explanation. Consider the many explanations offered for the murder and mutilation of over 300, and perhaps as many as 500 old men, women, and children at My Lai in Vietnam by U.S. troops under the command of Lieutenant William Calley in 1968. Among the explanations are the stress of combat, Lt. Calley’s low intelligence, the fog of war, poor training and discipline, and that Calley and his men were scapegoats for a failed war and failed military leadership (Olson and Roberts 1998).13 What requires explanation is not the act itself (which can be explained in psychological, sociological, or political terms), but the place and meaning of such acts in a moral world. Do not such acts render any claim to a moral order absurd—that is, totally out of proportion to the evil and horror of the world? Such acts need not. Murder, even mass murder, does not render the civil law against murder absurd, and no one thinks it does. But there is something about atrocity on a horrendous scale that mocks the moral order. The moral order is restored not by explanation, and not merely by narratives of right and wrong, though these help.

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Also required are acts of justice and punishment that serve to at least partially restore the dignity and memory of those who were damaged and destroyed. Through tribunals, or courts of justice, such as the International Court of Justice in The Hague, human beings say to each other and future generations that the natural law (by whatever name it is called) exists. Humans do not call the natural law into existence with their acts, but without these judicial acts, the new German robbers, by whatever name they are called, risk causing a new world to become cynical about what its citizens believe. “Truth and reconciliation commissions” are a relatively recent innovation in the attempt to realize the natural law in history. It is difficult to make a generalization about their success, or even how it might be measured. South Africa’s Truth and Reconciliation Commission, established after the fall of the white supremacist government to investigate years of government-sponsored terror, is generally considered the model. Under the South African model, human rights abusers are generally provided amnesty if they testify truthfully to their crimes. The primary goal is to provide official evidence of past abuses, in order to establish a historical record as a resource against the forgetting or rewriting of history. The achievement of a dozen such commissions has been mixed.14 Setting the historical record straight seems, in any case, an easier task than reconciliation, according to several studies (De La Rey and Owens 1998; Hayner 2001). In March 2009, Senator Patrick Leahy and Representative John Conyers of the United States called for a “truth commission” to investigate, but not prosecute, alleged crimes of the Bush administration. Maritain’s and Mounier’s views were founded not on questions of peace and war, but on a hope for a world in which the sacred and religious would infuse and enlighten the world of everyday life—social, political, and material. In other words, they hoped for a new middle ages (Amato 1975, 146). This was the core of their resacralization project. The events of the 1930s and 1940s stripped them of their utopian dreams, and made their project historically irrelevant. For all his utopian nostalgia

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(applied to Maritain, the term is not necessarily a criticism, merely a description of resacralization), Maritain came to realize that the real choice was one of defending one part of bourgeois civilization against another: England against Germany, the United States versus the Soviet Union. Is it reasonable to see Germany and the Soviet Union as part of bourgeois civilization? No, certainly not Germany in the age of Hitler, or the Soviet Union in the age of Stalin, but both totalitarian regimes grew out of the crisis of bourgeois civilization, marked by the liberation of the individual from every form of traditional bondage. The new freedom came with a terrible price—the terror of normlessness, a type of moral homelessness. This led to a willingness to accept new forms of bondage as though they were more benign than the old. Only too late did the displaced bourgeoisie discover the truth, and perhaps many were not displeased to find out. Still suspicious of the liberal democracies inspired by Locke, Rousseau, and Hegel, Maritain came to see the value of the human city, as well as the broader need for a free, democratic way of life, which is another way of saying that while Maritain continued to hold that a Christian view of life remained the sole inspiration capable of supporting personalist democracy, he came to see the value of liberal individualism, at least compared with its real historical alternatives. By the middle of the twentieth century, Maritain was willing to take the modern world seriously. Hitler and Stalin had seen to that. Personalism, which began joined to a nostalgic vision of the medieval world, was no more a philosophy of man and society, but a critique that Maritain could draw on in order to retain some distance from the reigning “isms” of the day, including liberalism, with which he never made his peace. Maritain is at his best in critiquing the failure of the modern project, as he does in Three Reformers: Luther, Descartes, Rousseau (1929). Modernity, he argues, sees emancipation as freedom from nature. And here, of course, he would include Kant (2002, 42–49 [c.1, para. 5–8]) as modernity’s spokesman. “Kant and Rousseau reject any measure or regulation derived from the world of nature because regulations originating from

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the natural order of things would destroy the autonomy and supreme dignity of the person” (Goodreau 2001, 99). This is, Maritain believes, not only a false conception of emancipation, but a false conception of human rights—that freedom must be based upon obedience to the self if it is to be truly free. It is a point he will return to again and again in Man and the State. Maritain is at his best in making sense of the natural law by combining Bergsonian intuition with a commitment to being in the world that transcends the subjective experience of being. What intuition knows is not just a feeling about the objects of natural law, such as right and wrong, though it knows that too. Intuition knows the objects of this experience, in this case people, their relationships, obligations, and duties, seen in the light of love and friendship, be they neighbors, friends, children, spouses, or even strangers. Maritain is a student of “many ways of knowing,” as a collection of essays on his work puts it. I am selective in emphasizing intuition, poetry, and love as the leading ways, but many believe that these intuitive ways of knowing are the heart of Maritain’s project. As Dunaway (2002, 322) states, “Of the many modes of knowing that he so masterfully distinguished in order to unite, I think the quintessential one is connatural knowledge.” Connatural knowledge has the additional advantage of being that tangent where Maritain’s epistemology comes closest to Thomas. For, in both men, the distinction between knowledge and action is real, but not watertight; a dialogue within the actor, and with his or her community. As Taki Suto (2004, 65) suggests, while connaturality does not ask “why” at the moment of acting, it embodies the principles of natural law in a way that is intuitive but not beyond words. Because of this fact, the actor would be able to explain what he did to himself, or to another, even if the actor required the help of another to draw the explanation out. The fact that an act is subject to the dialectic is a sign that it remains not so much rational, as social, a story about the actor’s place in the community of men and women. This is a large part of what Maritain means by after-knowledge.

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Man and the State Based on lectures delivered at the University of Chicago in 1949—when Maritain had just finished his work with the UNESCO philosophers’ advisory group to the drafters of the United Nations’s Universal Declaration of Human Rights— Man and the State is most notable for the limited role it would grant the state. Limited not so much in function, but in moral and representational significance. For Maritain, the key concept is not the state, but the body politic, an association of associations, what today we call civil society. In one respect, and in one respect only, the state sits on top of these associations, possessing a monopoly on the legitimate use of force. But in other respects, the state is simply an instrument of the body politic, having no legitimate interests of its own. The people need the state for the sake of justice, to protect them against the privilege of class and other forms of concentrated power, as well as from the tyrannies of other states (Maritain 1951, 172). These are the proper tasks of the state. Over and over, Maritain tells us that the state is dangerous, that it tends toward absolutism. Over and over he tells us that the concept of state sovereignty—indeed of sovereignty itself— is vicious. Applied to the state, it means absolutism. Applied to the people, sovereignty can only mean something vicious, such as the belief that whatever expresses the will of the people possesses the force of law. But law is not made by the will of the people, but by the natural law, which grants people the right to govern themselves, and limits the laws they may endorse (Maritain 1951, 48). By the time he wrote Man and the State, Maritain had become relatively sophisticated about politics, devoting a page to Saul Alinsky quoting Alexis de Tocqueville to the effect that if people lose the habit of governing themselves in small matters, they will soon develop the habit of subservience toward power. “It is, indeed, difficult to conceive how men who have entirely given up the habit of self-government should succeed in making a proper choice of those by whom they are to be governed.”15

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Today, most of those who write about civil society see it as an adjunct to big government, a place where people can practice the virtues of self-government and social intercourse with a wide variety of people on a small scale, the better to choose their leaders (Putnam 2001). Maritain does not reject that view, as the preceding quote suggests. The difference is that Maritain is a utopian, imagining that in an ideal world the state would wither away, as its functions devolved among pluralistic autonomous associations after a long period of state capitalism or socialism (Maritain 1951, 27). In drawing upon Alinsky and de Tocqueville as his guides for a pluralist democracy, Maritain breaks from Thomas. More precisely, Maritain recognizes Thomas’s irrelevance to the modern world unless one breaks from him. “St. Thomas’ views on the matter call for an historical approach and a philosophical enforcement of the idea of development that the Middle Ages were not equipped to carry into effect.” With the odd term “philosophical enforcement,” Maritain seems to be moving the locus of connaturality from the individual in community to the individual in community within historical time. He does so using Thomas’s own key concept of “the inclinationes of human nature . . . the obscure, unsystematic, vital knowledge of connaturality” in history in order to render Thomas more historical (Maritain 1951, 91–92). It is in and through history that connaturality is expressed and transformed in its expression. While natural law is itself beyond history, we live in an age in which any thinking person must recognize that our access to the natural law is dependent upon the fact that we are social beings living in particular historical circumstances. Or as Maritain puts it, “[K]nowledge of the primordial aspects of natural law was first expressed in social patterns rather than in personal judgments” (Maritain 1951, 92). Man and the State establishes the primacy of the social in the knowledge of the natural law. While natural law remains the same, our knowledge of it “develops in proportion to the degree of moral experience and self-reflection, and of social experience, also, of which man is capable in the various ages of his history” (Maritain 1951, 94). Though Maritain

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does not employ the language of transforming inclination into shared narrative, though his philosophical style does not fit comfortably with this formulation, the conclusion seems much the same. It is a conclusion that teaches us something about inclination and narrative as well: their relationship is not simply one of contained and container, but of conflict and struggle. Consider the abolition of legal segregation in the United States. Segregation was always against the natural law, for reasons stated by Martin Luther King Jr. (chapter 1). But for millions of people to learn this required not just individual insight and intuition, but the civil rights movement, legal decisions such as Brown vs Board of Education (1954), and decades of experience, often costly in terms of lives and dignity. Maritain would understand what the Marxist theologian Ernst Bloch (1986, xxx) meant when he said that “genuine natural law, which posits the free will in accord with reason, was the first to reclaim the justice that can only be obtained by struggle.” Maritain would understand that natural law is a potential that is actualized in history over time, and sometimes only through human conflict, which need not always be violent. Indeed, Maritain (1951, 68–69) spends some time discussing Gandhi’s Satyagraha (the power of truth), comparing patience, voluntary suffering, and the courage that endures, with the ideals of Saint Thomas. On the other hand, Maritain understands that sometimes violence is necessary. Thomas could simply not imagine “what has been called l’univers concentrationnaire . . . a nightmare of a society” (Maritain 1951, 72).16 Maritain criticizes two paths. One is the withdrawal into moral purity, and the other that of abandoning morality altogether. Maritain recommends the tougher path of making moral judgments in difficult cases with no clear guidance, such as the decisions faced by the French Resistance against the Nazis. (Maritain played a leading role in founding the École Libre des Hautes Études, a university in exile that was the center of Gaullist resistance in the United States.) Against barbarism, violence is sometimes necessary. While morality and natural law remain, sometimes there is very

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little in the way of shared social and historical experience to guide men and women who must make terrible choices, including killing some to save still others. But what else is there to do? Sometimes nothing, or rather doing nothing, is the worse choice (Maritain 1951, 72–75).17 While the social is primary, at least in ordinary times, in our knowledge of the natural law, neither society, nor the state, nor the often esteemed common good is the highest value for Maritain. For the “general will,” Maritain has nothing but fear and contempt. Neither is the individual the highest value, as we have seen in Maritain’s discussion of personalism. The common good is lost if it is closed within itself, for, of its very nature, it is intended to foster the higher ends of the human person. The human person’s vocation to goods which transcend the political common good is embodied in the essence of the political common good. To ignore these truths is to sin simultaneously against both the human person and the political common good. Thus, even in the natural order, the common good of the body politic implies an intrinsic though indirect ordination to something which transcends it. (1951, 149)

The great advantage of this view is that politics, even the common good, can never become an end in itself, because the individual is not an end in him or herself, not even as he or she partakes of the common good. The supra-temporal good of the person, his or her eternal destiny, remains the highest good. The term “person,” in this context, always refers to an individual as family member, citizen, worker, and possessor of an immortal soul, whose fate is more precious than we can ever imagine. This is the legacy of personalism in Maritain’s later work. Viewing the person in these terms reveals that the state is not a mere holding company, far less a means, or vehicle of transcendence. Maritain is clear that since the loss of the res publica christiana of the Middle Ages, the unity between Church and body politic must take place within the unity of the human person (1951, 160–161). Of paramount importance is that the “internal springs of conscience” are unified in the

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earthly city, and this comes about through their unification in the human person: citizen, seeker after the common good, and human creature concerned with his or her eternal destiny. (Those who do not fall within this last category, and evidently Maritain does not expect it to be many, remain citizens in good standing.) There is nothing contradictory about these roles, as long as we remember the proper place of the state in facilitating all three. The state serves the person, the Church, and the quest of the soul for eternity by doing well the things states do best: the promotion of prosperity, the equitable distribution of the material things that are the support of human dignity, and the effective guarantee of a just and legal order. Justice, within the framework of what we would call the welfare state, is the proper contribution of the state to its citizens. For the state to do more, for the state to foster religion, can only threaten citizen and Church. Recall that Maritain is writing in the shadow of totalitarianism, which he regards as an idol, a “spurious God of the lawless Empire bending everything to his adoration” (1951, 187). Far from favoring the state sponsorship of religion, Maritain sees its overwhelming danger—the state always eager to extend its influence. Not a religious state, but a state religion, is how he would see their entanglement as likely to turn out. Yet it is not quite so simple as that for Maritain either. “The inspiration of the Gospel . . . passing into the sphere of temporal existence [is] the very soul, inner strength, and spiritual stronghold of democracy” (1951, 176). For it is Christian democracy, that is, a democracy fully aware of its own sources, that keeps alive the values of human dignity, equality, justice, and freedom. It is in this regard that Maritain is particularly excited about the relationship between Church and state in postwar America vis-à-vis secular Europe. “Sharp distinction and actual cooperation, that’s an historical treasure, the value of which a European is perhaps more prepared to appreciate, because of his own bitter experiences. Please to God that you keep it carefully, and do not let your concept of separation veer round to the European one” (1951, 183).

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Unfortunately, Maritain does not seem to fully understand the American experience, imagining, for example, that the U.S. Constitution is a “great political Christian document” (1951, 183–184). Though the religious beliefs of the founding fathers were diverse and complex, many are best described as Deists, proponents of a religious-philosophical view closely associated with the Enlightenment. Thomas Jefferson was a Deist, referring frequently to “nature’s God.” So too was James Madison, the man most closely associated with the authorship of the Constitution. The other religious tradition running through the document of 1787 was a Puritan Calvinism, best captured by James Bryce’s (1995) comment that “someone has said that the American government and constitution are based on the theology of Calvin and the philosophy of Thomas Hobbes. This at least is true that there is a hearty puritanism in the view of human nature which pervades the instrument of 1787. It is the work of men who believed in original sin . . . .” (306). This does not quite seem to be what Maritain had in mind. The cliché has it that Thomas baptized Aristotle, meaning that he accepted Aristotle’s view of man as containing an inborn nature that aims to unfold itself into a rich and full human being if given the proper direction and support. To Aristotle’s naturalism, Thomas added the supernaturalism of Christianity. Man’s ultimate telos concerns his eternal soul. But Thomas did not disembody that soul (the term used in the Greek Testament, pneuma, which also means the breath of life, suggests this), and neither does Maritain. The latter’s great achievement is to take Thomas’s vision and make it compatible with a pluralistic democratic politics. He does so by coming to understand the real, but limited, role of the state. This required that he first develop a healthy fear of the state. He was at the right time and the right place to do so.

The Soul’s Freedom? Maritain insists that the great error of modern thought, epitomized, but hardly begun, by Kant, is to insist that freedom

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requires humanity’s consent to nature. And yet some of what Maritain says about the soul could be read as a return to a type of Kantian individualism, in which the self-determining character of the person (his or her autonomy) is the source of his or her dignity (Kant 2002, 42–49 [c.1, para. 5–8]). The statements that Maritain makes to this effect are puzzling because behind Maritain’s criticism of Luther, Descartes, and Rousseau lies a critique of Kant. Indeed, all that is wrong in these thinkers culminates in Kant (Maritain 1929, 4). For Kant, I possess freedom and dignity when I follow no other will but my own—that is, when I freely consent to follow only those laws that I would rationally give to myself, were I my own legislator. Consider the following statement by Maritain, which he does not intend as criticism. The human person possesses rights because of the very fact that it is a person . . . master of itself and its acts, and consequently not merely a means to an end, but an end . . . . [What is] the dignity of the human person? The expression means nothing if it does not signify that by natural law, the human person has the right to be respected, and is the subject of rights, possesses rights. (Maritain 1986, 65)

To be sure, Maritain is quick to add that a person’s rights are balanced by his or her duties. However, Maritain grounds both rights and duties in human autonomy, which he sees as a reflection of God’s freedom in creation. Furthermore, Maritain claims that “the notion of right is even more profound than that of moral obligation,” because freedom is as fundamental to man as to God (Maritain 1986, 65).18 Isn’t Maritain making two claims at once; claims that, when pushed to their limit, must conflict? On the one hand, Maritain sees human freedom and obligation as derived from the natural law. Humans do not have rights because humans have rights. Humans have rights, and obligations, because they participate in an ideal larger order that we call the natural law, in which human freedom is given its place. On the other hand, Maritain starts out by claiming that the human person possesses rights

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merely by virtue of being a person, that possessing rights is the mark of human dignity, because it is the mark of human autonomy and creativity, a quality we are granted by, and share with God. Robert Kraynak (1998, 74) concludes that “unlike Thomas, Maritain seeks to blur the distinction in rank and to enhance the status of man by giving him personhood akin to God.” Akin to God, because creativity is the mark of Divine agency. Read in the context of Maritain’s work as a whole, Kraynak’s claim is extreme. Recall Maritain’s identification of creative love as the source of connaturality. Maritain assumes that relationships such as friendship and marriage inspire the connatural mode of knowledge, and it is this knowledge that enables us to imitate the Divine Artist in all the ways that humans may be creative, from the traditional forms of creativity known as art, poetry, and music, to the less traditional, such as the creativity required to bring a lost and lonely child out of its shell—the creativity of teachers and cultural workers of all kinds (Dunaway 2002, 322). Indeed, one suspects that all good friendships are warmed by the creative adaptation of the partners to each other’s needs. Maritain, it is clear, is not talking about usurping the role of the Creator. Instead, he sees creativity as one more thread that binds the human world together, one more spark that grants us access to the intuitive knowledge of the natural law. Contrasting images, but in this case, threads and sparks go together. Kraynak’s criticism is extreme, but his insight remains valid: a modern conception of freedom has crept into Maritain’s politics. It has done so because Maritain came to terms with the liberal democratic state, because Hitler and Stalin gave him no other choice, because personalism as a political philosophy (as opposed to a political sentiment) was a dead end, and because Maritain’s experience with UNESCO philosophers who advised the drafters of the United Nations’s Universal Declaration of Human Rights taught him that there really was universal agreement on the rights of man, even if the philosophers differed, often significantly, on the reasoning behind these rights (Maritain 1951, 77; Glendon 2001).

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Common law natural law

But, you say, what difference does this empirical fact of universal agreement make? The natural law is not redeemed by voting, just as the general will is not redeemed because everybody happens to will the same thing. True enough, but the experience Maritain gained working with scholars from all over the world, including Asia, Africa, and Latin America, seems to have convinced him that the philosophers had done more than merely vote. The agreement among the philosophers on the Universal Declaration of Human Rights constituted, said Maritain (1951, 78), a “grosso modo a sort of common residue, a sort of unwritten common law, at the point of practical convergence of extremely different theoretical traditions.”19 Not quite the natural law, this agreement was more than voting. This agreement represented that point of overlap, in practice fairly large, where different philosophies and religions could agree in practice on what was always right and wrong. “And God keep me from saying that it is not important to know” which philosophical or religious justification is right, adds Maritain (1951, 78), in an oath that seems designed to reassure himself that it really is important to know. For, there is this surprising practical streak in Maritain that he himself must, it seems, fight against. A common law natural law? The concept is neither absurd nor heretical, even if Maritain seems to feel he has risked damnation to say it. But say it he did, with enough humor to take the edge off. When a visitor to one meeting of the UNESCO philosophers’ committee that advised the Declaration drafting committee expressed amazement that men of such vastly different cultures, beliefs, and ideologies could agree on a list of fundamental rights, Maritain says the man was told, “Yes, we agree about the rights but on the condition no one asks us why” (Glendon 2002, 77). How best to understand this common law natural law? One hint is provided by the Preamble to the United Nations’s Universal Declaration of Human Rights, which refers to “the equal and inalienable rights of all members of the human

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family” as “the foundation of freedom, justice, and peace in the world” (Glendon 2002, 310). The purpose of the Preamble, according to its author, René Cassin, was to establish an intellectual or philosophical perspective from which to understand the rights enumerated by the Declaration. That perspective, it turns out, was less that of a liberal document, and more an expression of the dignitarian rights tradition of continental Europe and Latin America than the more individualistic documents of Anglo-American lineage. Dignitarian rights instruments, with their emphasis on the family and their greater attention to duties, are more compatible with Asian and African traditions. In these documents, rights bearers tend to be envisioned within families and communities. (Glendon 2002, 227)

Though the dignitarian tradition is not the same as personalism, in the end Maritain’s vision came closer to this tradition than liberalism. This is so even as Maritain’s emphasis on individual freedom means that the closeness of the dignitarian tradition to personalism must be qualified. But no matter, the goal is not to label Maritain’s position, but to understand it. In any case, the vaunting ambition of the Universal Declaration, its failure to distinguish rights from utopian ideals in its later articles, is the topic of chapter 5. Another aspect of Maritain’s practicality regarding the natural law is how much of the natural law he is willing to sacrifice in order to preserve the common good, by which he means the moral traditions and practices of the community. About the basics, the common law natural law is inviolate. About the details, “civil legislation should adapt itself to the variety of moral creeds of the diverse spiritual lineages which essentially bear on the common good of the social body” (Maritain 1951, 169). This is, Maritain continues, an application not only of the principle of pluralism, but also that of the lesser evil. To make his point, Maritain draws upon Thomas (ST II–II 10, 11), who would tolerate the rites of the unfaithful.

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To this Maritain adds juridical protection for disparate “ways of conceiving the meaning of life and modes of behavior,” lest the greater evil of fanaticism and civil strife afflict the community (Maritain 1951, 169). If Maritain has journeyed a long way from the medieval longings of personalism, the core insight of connaturality or intuition as the primary means of access to the natural law remains. What has become clearer as Maritain’s work developed through midcentury is how shared, or social, this process truly is. Communities in which members tolerate and respect each other are in a better position to help each other know the natural law. One reason is they are likely to be more creative, for many of the reasons theorists of diversity have been teaching us for several decades now (Parekh 2002). Not simply because diverse views contribute to a richer dialogue, but because the deepest insight is often held by those on the margins of mainstream society. When I was a Fulbright Scholar at a leading university in Seoul, Korea, the question arose as to whether non-Koreans, generally Westerners, should be allowed to teach Korean literature. No matter how fluent their mastery of Hangugeo (the Korean language), some argued, a non-Korean could never truly understand Korean literature as a Korean would, a literary tradition that often implicitly assumes a conjunction between personal suffering and the historical suffering of the Korean people. My position was, and is, that there were things about Korean literature that a non-Korean would never understand. Conversely, there were things a Westerner educated in Korean language and literature would know on his or her first day facing a class of Koreans that a Korean scholar would never know. Sometimes, you have to stand on the outside to know the inside. Openness can be learned, but perspective can only be experienced, which is why it is good to have many perspectives around us, creating many margins, so that we might invite their denizens to join us. Why not, I asked, teach Korean literature classes with both Korean and Western professors teaching each class, either together or sequentially? The eventual outcome of

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the debate was murky, a common enough occurrence in Korea. However, does the reader imagine that most colleges and universities in the United States would be enthusiastic about having their core courses in Western civilization co-taught by an imam?20 (I refer, of course, only to those colleges and universities that still care about transmitting the great tradition in the first place.) For Maritain, connaturality is also conviviality, in the literal meaning of the term: sharing a feast together, the feast of life, in which we are all hosts and guests. So that our narratives about our inclinationes naturales are more likely to reflect the natural law, less likely to reflect the prejudices of time, place, class, race, sex, and so forth, it is a good idea to invite people with diverse backgrounds to the table. It is good to listen to and make a place for their stories, which will likely overlap as well as conflict with our own. Though they came from all over the world speaking different tongues, the UNESCO commission advising the authors of the Universal Declaration of Human Rights built no Tower of Babel, but created instead a widespread consensus on the basics of human decency. The degree to which communities sharing very little in regard to philosophical and religious fundamentals are able, if there is goodwill on all sides, to agree upon a common law natural law seems to have surprised, pleased, and even threatened Maritain. “Threatened,” for if others could arrive at similar conclusions from vastly different premises, or so Maritain seems to have believed, then perhaps premises are not as important as conclusions in thinking about the natural law. If, however, we understand that pluralism is the direction in which Maritain’s political work was leading since the Second World War, that pluralism and civil society are really the keys to his later work, then this result should not be surprising. Or rather, only in retrospect is it surprising, for in the beginning it was hard to imagine what the consequences of these two forces might be for the natural law. Far from rendering the natural law obsolete, pluralism and civil society render the natural law more alive, while opening us to the possibility that the way we justify the natural law may

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be less important than the fact that we feel it. But this way of thinking was always with Maritain, as it was with Thomas. It is simply hard to know what to do with connaturality, particularly when it becomes subject to the dialectic—the influence of others in dialogue over time. But did anyone really imagine that it worked any other way? Or rather, that it could?

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For a group of philosophers today, often called the philosophers of the new natural law, the solution is to lift natural law out of nature entirely. The problem, at least the stated problem to which the new natural law is a solution, is the desire to free natural law from “Hume’s Guillotine,” as the difficulty is sometimes known. An unbridgeable gulf between statements of fact and statements of value exists, as David Hume (1711–1776) pointed out. For instance, from the fact that there are lots of hungry people in the world, and the fact that there is lots of surplus food, I am not logically compelled to conclude that the hungry should get this food. In fact, I am not logically compelled to conclude anything. What I should do is a moral decision not determined by the facts alone.1 Of course, if one assumes that humans view the world as a moral experience from the beginning of life, so that the original experience is not, as an equation, “there are hungry people” + “there is lots of extra food,” but “people are starving, I must do something,” then Hume’s problem does not appear in the first place. In fact, this is essentially Hume’s own position, a point that is often overlooked.

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Hume objects to the attempt to derive “oughts” (or shouldstatements) from statements of empirical fact. Hume does not object to attempts to derive “oughts” from statements about feeling. On the contrary, he believes that certain moral feelings, such as revulsion against vicious tyrannies, possess the status of moral certainties. It is to this example that he refers when he states that “the general opinion of mankind has some authority in all cases; but in this [case] of morals it is perfectly infallible. Nor is it less infallible because men cannot distinctly explain the principles on which it is founded” (An Enquiry Concerning the Principles of Morals, III, 2, 9). Indeed, it is statements such as this that led Frederick Copleston (1959, v. 5, 34) to portray Hume as a virtual natural law theorist. However, that’s not quite right either. Hume is a moral sense theorist, holding that our “ ‘oughts’ can indeed be reliably engendered by internal sentiments, common to the majority of humankind” (Kainz 2004, 73). Moral sense theory is a form of ethical intuitionism, which assumes that a moral sense provides guidance in much the same way as other senses, such as sight, provide guidance. One advantage of moral sense theory is that it explains how we may “know” that something is right or wrong, but not be able to explain it, just as we may not be able to explain why something is ugly or beautiful. Moral sense may be the foundation of the natural law, but it is itself too inarticulate, undeveloped, and without systematic content to be the natural law. It is the exemplary natural law theorist Thomas Aquinas who defines the prime principle of natural law as “do good, avoid evil” (ST I–II 94, 2). For some of the new natural law theorists, such as John Finnis (1980) and Robert George (1999), the statement is strictly analytic, true by virtue of the way we use the terms “good” and “evil.” Seen from this critical perspective, either the natural law has no content, the semantic equivalent of “all bachelors are unmarried,” or the content of the natural law has no status in logic, being based almost entirely on Hume’s fallacy, the derivation of “ought” from “is” (even as Hume understood the limited place of this fallacy in the real

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world better than many who follow). If human nature were constructed roughly along the lines described by Aristotle and Thomas Aquinas, there would still exist no grounds to conclude that we “ought” to live according to this nature. Perhaps true nobility lies in defying our nature, as when I resist my natural desire to murder the drunken man who carelessly ran over my child. In any case, nature is discovered; ought is created by the decision to observe certain values. Between these two realms there is a chasm, one that neither a belief in God, nor in a world properly ordered by nature, can bridge, as we live in a secular and modern world. In response to this criticism, the new natural law was born. People still talk and act as if goods such as life, friendship, health, knowledge, beauty, and play are good in themselves. (These are, of course, similar to the goods chosen by Thomas.) For example, we desire money in order to acquire things. Money is an instrumental good, but health is a good in itself. Goods in themselves do not require further justification, and because they are already values, one is not committing the naturalistic fallacy in saying we ought to pursue them. Furthermore, because these goods are not themselves moral values, but pre-moral, or so Finnis and George argue, the freedom of the individual is preserved. Not enmeshed and obligated moral beings, but free agents who would naturally (selfishly) choose these goods for themselves, are the subjects of the new natural law (George 1999, 45). The approach of Finnis and George to the natural law is empirical. It takes what is said to be desirable as truly desirable. What’s the human good? Just ask people. Turns out they generally agree on the same basic set of goods. The trouble with this approach is that not only is there no hierarchy among goods, but no developmental ideal remains. Abandoned is the principle that some goods are more important and profound than others. No longer part of a big story, the new natural law seems ideally suited for a contemporary world that no longer believes in metanarratives, as they are sometimes called: big stories about right and wrong, good and bad ways to live

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(Lyotard 1984). The Bible is an exemplary metanarrative, as are the works of Plato and Aristotle. So too are the works of Thomas and Jacques Maritain. In the absence of a “speculative philosophy of nature” by which to order the hierarchy among goods, Germain Grisez (1965) and Finnis (1980) posit what they call “modes of responsibility,” to guide us in choosing among them. Otherwise, I might choose to continue chatting with friends instead of preventing a child playing nearby from running into traffic. (If basic goods are equally valuable, who is to say that a child’s life is more important than pursuing the pleasures of friendship?) In developing “modes of responsibility,” the new natural law theorists believe they have met the objection that they can neither find nor posit a hierarchy among goods. Modes of responsibility are, in fact, familiar moral guidelines, even if they do not always look so familiar when expressed in academic-speak, such as “choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment” (George 1999, 51). A more familiar way of expressing the leading principle is in terms of Kantian universalism. “A person,” wrote Immanuel Kant, “is subject to no other laws than those which he (either alone or jointly with others) gives to himself” (Kant 1991, 50). Since I would want someone else to break off a conversation with friends to save my child, then I must will that moral hierarchy for myself as well as others. One can readily see why several critics of the new natural law see it as Kantianism in disguise. Indeed, as Henry Veatch (1978, 24–25) has argued, that seems to have been the fate of the natural law for many years now. Another way of putting this same point is that ever since Kant, scholars have been practicing “as if” natural law. Like the Kantian categorical imperative (act as if your action were to become a universal law that all people, including yourself, must obey), moral principles are issued as if they were principles of the natural law, but upon closer inspection, one quickly realizes that nature itself is treated as valueless—external to reason, and hence of no moral consequence. This seems to be the position of the new natural law theorists. The devaluation or

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epistemological disappearance of nature arises, one suspects, not merely from an overscrupulous observance of the is/ought distinction, but from a way of thinking that remains committed to interpreting human progress in terms of humanity’s liberation from nature. Ironic is how a position so essential to the Enlightenment has become essential to postmodernism as well, which argues that there is no path from text to world. We are trapped in text, from which there is no exit (Devine 2000, 55; Kainz 2004, 41–42, 73).

Evolutionary Natural Law If the new natural law would solve the is/ought problem by lifting natural law out of nature, evolutionary natural law would proceed in the opposite direction, re-naturing natural law. Though in the end it does not avoid Hume’s problem, evolutionary natural law allows us to rethink the is/ought problem much along the lines Hume himself began, that of moral sensibility. Frans de Waal (1996) argues, Our ancestors began to understand how to preserve peace and order— hence how to keep their group united against external threats— without sacrificing legitimate individual interests. They came to judge behavior that systematically undermined the social fabric as “wrong” and behavior that made a community worthwhile to live in as “right.” (208)

De Waal has a list of these community-supporting traits, including “sympathy related traits,” “norm related characteristics,” “reciprocity,” and “getting along” (211). Most are readily translated into the human goods listed by Aquinas. For example, sympathy includes not just pity, but the traits of attachment that lead parents to care for their children, and the community to see to their education. Getting along is defined in terms of “community concern and maintenance of good relationships,” a phrase that could have almost been lifted from Thomas, were it not expressed in the argot of social science.

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Yet, de Waal does something Thomas would never do. He puts the terms “wrong” and “right” in quotes. This is not just contemporary social science talking. De Waal understands that upholding the social fabric is not necessarily good. It depends upon the quality of the social fabric itself. Is the society equivalent to a bunch of German robbers? Does it live off the labor of an underclass of Helots, serfs, or slaves? Is it imperialistic, warmongering? Not only can evolutionary natural law not answer questions of “right” and “wrong” at this level, but it gains its strength from assumptions that make it almost impossible to address these questions. The group must remain united and stable, as de Waal suggests, for if it is not, it will be less effective against external threats. Evolutionary morality assumes, at least tacitly, and often explicitly, that the morality of the group is the morality of war. In a sense, evolutionary morality is Hobbes writ large: in a threatening world, the group must be a stable and secure place, not one in which internal conflict invites attack. James Q. Wilson (1993) puts it this way in The Moral Sense. How can there be a moral sense if everywhere we find cruelty and combat, sometimes on a monstrous scale? One rather paradoxical answer is that man’s attacks against his fellow man reveal his moral sense because they express his social nature. Contrary to Freud, it is not simply their innate aggressiveness that leads men to engage in battles against their rivals, and contrary to Hobbes, it is not only to control their innate wildness that men create governments. Men are less likely to fight alone against one other person than to fight in groups against other groups. It is the desire to earn or retain the respect and goodwill of their fellows that . . . leads men to accept even the most distorted or implausible judgments of their peers . . . and persuades many of us to devalue the beliefs and claims of outsiders. (227)

Wilson makes this claim in a section of his book asserting the existence of “moral universals.” Yes, he argues, there are moral universals, such as the affection of a parent for a child, a sense of empathy and fairness, and a sense of duty and loyalty to the group, among others. The trouble is our moral senses are

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parochial, arising in and bounded by the group in which we live. No matter how large this group, say, a nation of 300 million (and it is rarely that large; usually it is much smaller, such as “Americans like me”), these universal values are not coextensive with humankind. Furthermore, they can never be coextensive with humankind; for they originate in a group that defines itself, particularly in its need for hierarchy, order, and cooperation, in terms of the threat posed by other groups. No threat, no cohesion. It is as if Hobbes’ mighty sovereign was the threat posed by other groups. It is the external threat that keeps the sovereign state from devolving into civil war, or even the war of all against all. Enemies do what even leaders cannot. From an evolutionary perspective, group morality stems from the need to manage group conflict. “The building blocks of morality are not nice or good behaviors but rather mental and social capacities for constructing societies ‘in which shared values constrain individual behavior through a system of approval and disapproval’ ” (Wade 2007; internal quote from de Waal). The problem is apparent. Evolutionary natural law is an explanation of the origins of morality. It cannot be a reason, in the sense of an answer one would give to someone as to why one should be moral. “Be moral because it was to your ancestors’ adaptive advantage” makes no sense as an answer to someone in an ethical quandary. Of course, one does not usually turn to natural law as an answer to why someone should be moral, at least not as an explanation. Exchanges such as the following usually don’t happen, though they have their place. Tom asks, “Tell me why I shouldn’t rob and even kill if it makes me rich and happy?” Joe replies, “Because natural law says you shouldn’t. Not only that, natural law tells you that it will make you unhappy, because you will violate the dignity of others, and thus betray your own highest and best nature.” Instead, one turns to particular stories about particular people who have lived lives of robbery and murder, only to find emptiness in the end. The Bible used to be the place where most people in the West started; today, novels are popular. The Book

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of Evidence, by John Banville (2001), is just one of hundreds of examples one might turn to. I hit her again and again and her blood spattered the window. This is the worst, the essential sin, I think, the one for which there will be no forgiveness: that I never imagined her vividly enough, that I never made her be there sufficiently, that I did not make her live. Yes, that failure of imagination is my real crime, the one that made the others possible. (215)

One never quite knows if this is the protagonist’s deep insight into morality, or merely into his own narcissism—that he must make, rather than simply let, her live. Such is the wisdom of novels. It should not pass unnoticed that even a strictly secular novel, such as Banville’s, whose protagonist is no Stephen Dedalus, struggling against his religious upbringing, remains indebted to Judeo-Christian concepts such as sin and forgiveness. De Waal says perhaps more than he knows when he states, “I look at religions as recent additions [to morality]. Their function may have to do with . . . giving a narrative to them, which is what religions really do” (Wade 2007). But if giving a narrative is what giving a reason really amounts to as far as the explanation of morality is concerned, then this recent addition is not merely a gloss on our evolutionary heritage, but its transformation into something different, albeit not completely different, for we never escape our nature. Rather, we subject nature to a uniquely human form of understanding, the moral narrative. Natural law is this narrative. However, because natural law is an abstract narrative, for many (but certainly not all) purposes, particular stories are more persuasive. For our purpose, which is to think about the basis and meaning of morality, natural law itself is the narrative we are interested in. The question is what evolutionary natural law might add to this story.

Evolutionary Natural Law is not Natural Law In “Evolutionary Ethics: An Idea Whose Time Has Come?” Peter Corning (2003) mentions that one of the good things to

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come out of the terrorist attacks of 9/11 was the sense that for a little while Americans were all in this together, that many of us were not just willing but eager to sacrifice for others, such as donating blood and money. More than a few sacrificed their lives. Trouble is, evolutionary ethics, understood as the builtin tendency of humans to cooperate, and even sacrifice, in the name of the group, explains the behavior of the terrorists as well as their victims. Like their victims, the terrorists gave of themselves to the group, caring more about a shared ideal than their own lives. Corning, like most evolutionary moral theorists, does not discuss the power of shared ideals. Yet it is this, as much as the more mammalian forms of attachment about which he writes, that binds human groups together. Human attachment is mediated by symbols, not just skin and kin. What makes the ethics of the terrorists wrong? About this question evolutionary ethics is not very helpful. Evolutionary ethics is concerned with the relationship between me and my group as it faces other groups in the competition for scarce resources, which for human animals includes meaning. In the case of the terrorists, the scarce resource is the meaning of modernity itself. Evolutionary ethics helps to explain as a point of empirical fact why individuals sacrifice for their group. In doing so, it tells us about a force that no one concerned with social or ethical theory can ignore. What evolutionary ethics cannot do is tell us what we should do. In other words, evolutionary ethics is an empirical account of the bonds that hold societies together. It cannot tell us which societies should be held together, which shouldn’t, how, at what cost, and by what means. This might seem an obvious point, except that by the second sentence of his essay, Corning is fudging the distinction, suggesting with little more than a hyphen that evolutionary ethics not only explains, but justifies, human ethical systems. As he puts it, “The basic issue, in a nutshell, is whether or not human ethical systems can be explained—and justified—in terms of evolutionary principles” (Corning 2003, 51). An even simpler example helps to make my point. In Darwinian Natural Right: The Biological Ethics of Human Nature, Larry Arnhart (1998, 265) argues that “the Catholic Church’s

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prohibition of divorce is contrary to the natural pattern of human mating.” True enough, but is this bad or good? Darwinian natural right tells us that banning divorce will put pressure on human nature. Many will fail the test. But as Aristotle’s Ethics tells us, the most valued human excellences are precisely those that are the most difficult to achieve. Knowing that the Church forbids a practice that is contrary to the natural pattern of human mating tells us that the Church is asking something difficult of us. But we knew this already. What we don’t know is whether the Church should ask this, and about that question evolutionary ethics is not helpful. In fact, the situation with Arnhart is stranger than first appears. Arnhart is the most visible spokesman for a conservative interpretation of evolutionary natural law. “For Arnhart, Darwin is not a biological materialist but a modern disciple of Aristotle. Properly understood, Darwinism proves that morality is rooted in human biology” (Guerra 2001, 8). And yet, for all his apparent pleasure in quoting Aquinas as once describing natural right as “that which nature has taught all animals,” Arnhart must abandon the tradition of the natural law in order to make it compatible with Darwin (ST I–II, 94, 2; Arnhart 1998, 259–260). Darwin never uses the term “evolution” in The Origin of Species. Evolution is a teleological term. To say that something evolved is to imply that it evolved toward something. “What is most striking about the Darwinian defense of morality is that it argues for one of the positions that natural law has traditionally argued against. Natural law historically has opposed any simplistic identification of the natural with the biological” (Guerra 2001, 10). In the tradition of the natural law, “natural” has almost always meant ideally reasonable (not ideally rational), understood as viewing who we are in terms of who we could be. In other words, natural law tells a story about what we could be at our best. Natural law elaborates on who we might become if we fulfilled ourselves as human beings as fully as possible. For all his conservatism, Arnhart has abandoned the heart and soul of the traditional natural law in order to find its purported ground in nature. But he’s looking at the wrong nature.

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Natural law isn’t about biological nature. The context of Aquinas’s comment on what nature has taught all animals is not that of equating humans with animals, but quite the opposite— that of beginning with those things we share with animals, such as a desire to live and procreate, in order to show how human participation in the natural law, while rooted in our animal nature, extends far beyond it (ST I–II, 94). The nature that natural law is concerned with comes closer to the nature with which Maritain is concerned, the inclinations of the human heart. The nature to be studied is the heart’s desire to love. The history to be understood is why human love so often fails. A vague field of study to be sure, at least compared with Arnhart’s (2000, 23) claim that if natural law is to remain intellectually vital, it “will need to show that [its] position is compatible with this new science of human nature.” For a moment Arnhart sounds like Hobbes talking. Hobbes too believed that he was not just telling a story about human nature; he was founding a new science, albeit a science based on a mechanical rather than evolutionary model of man. To suggest that man is a machine was a great step forward in thought. Even though the hypothesis is probably untenable, it marked the beginning of the effort to use scientific methods and objective concepts in the sphere of human behavior. In the seventeenth century this was a novel undertaking, as well as a dangerous one. (Richard Peters 2006, 9)

The danger that Peters refers to is the threat posed by the Church. Hobbes and Galileo were contemporaries.2 Today, the mechanical model is out, the evolutionary model of man is in, but the desire to build a science of man based on the reigning model of the natural sciences lives on. Though it certainly appears as if Hobbes was committed to a scientific model of man, we shall see that science for Hobbes was a rhetorical strategy in an ideological struggle, a point overlooked by both Peters and Arnhart. Consider what Arnhart is willing to sacrifice in order to found natural law in a less metaphorical (more precisely put, a less

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interesting and less subtle metaphor) reading of nature. He would abandon, or rather confuse, a 2,000-year-old tradition of the meaning of “natural” in the term natural law. Nature in the natural law tradition doesn’t mean empirical human nature as it is. Nature means teleological human nature, human nature as it could be, human nature at its best, human nature understood in terms of what Aristotle called our final cause, the sake for which a thing exists or is done. Nature in natural law refers to our most complete development as humans. This is what Thomas means, this is what Maritain means, and it is a meaning entirely compatible with evolutionary natural law, as long as we do not become reductive and literal minded. If Arnhart would turn an account of the evolution of morality into the basis of natural law, de Waal is more circumspect. A professor of primate behavior, he wonders to what degree empathy is to be found in certain primates. Easiest to find is “emotional contagion,” as it is called, in which one creature seeks to comfort another, because the comforter has, in some sense, caught the other’s pain, and is seeking to comfort himself. Most monkeys seem to do this. Apes, however, especially bonobo apes, take this place-taking a step further, imaginatively identifying with the particular situation of the injured other, what we call empathizing. De Waal tells the fascinating story of a bonobo female empathizing with an injured bird. The story takes place in the Twycross Zoo, in England. One day, Kuni captured a starling. Out of fear that she might molest the stunned bird, which appeared undamaged, the keeper urged the ape to let it go . . . Kuni picked up the starling with one hand and climbed to the highest point of the highest tree where she wrapped her legs around the trunk so that she had both hands free to hold the bird. She then carefully unfolded its wings and spread them wide open, one wing with each hand, before throwing the bird into the air. (de Waal 2006, 30–31)

Kuni had seen birds flying throughout her enclosure her entire life. Conversely, what she did would have killed a baby bonobo. Instead, Kuni demonstrated “the empathetic capacity

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so enduringly described by Adam Smith as ‘changing places in fancy with the sufferer’ ” (de Waal 2006, 31). From this and other evidence, de Waal concludes that one finds in the bonobos and chimpanzees, the most cognitively developed of the apes, not just empathy, but the capacity for a theory of other minds (as demonstrated by attribution, the ability to recognize the mental states of others,3 ) and place-taking, all of which are necessary for the direction of other-directed sympathy that takes the situation of the other into account, not assuming it to be a mirror of one’s own. But sympathy, even in its most sophisticated form, while necessary to morality, is not sufficient. De Waal (2006, 167) talks about sympathy as a building block, and perhaps that is the correct term, as long as we recognize how much more remains to be built. Most important are those virtues summarized by Hume under the category the “party of humankind.” With this term, employed in the conclusion of An Enquiry Concerning the Principles of Morals, Hume (1960) seems to mean that through education and culture we have the potential to refine the original, limited disposition to respond to the wishes and needs of those closest to us, and so extend our sympathies even when they conflict with our desires, even when they go beyond the bounds of our group, to potentially include all humankind. But these principles, we must remark, are social and universal; they form, in a manner, the party of humankind against vice or disorder, its common enemy. And as the benevolent concern for others is diffused, in a greater or less degree, over all men, and is the same in all, it occurs more frequently in discourse, is cherished by society and conversation, and the blame and approbation, consequent on it, are thereby roused from that lethargy into which they are probably lulled, in solitary and uncultivated nature. Other passions, though perhaps originally stronger, yet being selfish and private, are often overpowered by its force, and yield the dominion of our breast to those social and public principles. (114)

This, though, will require that humans come to be more than merely sympathetic in a broad sense, sympathetic even

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when doing so runs against our selfish desires. The party of humankind seems to require that humans come to see ourselves as others see us. This is the approach of moral sensibility, the approach to morality that seems closest to that of evolutionary natural law. Christine Korsgaard draws on Adam Smith’s (1982) Theory of Moral Sentiments to make this point. Because we are social animals, sympathy leads us to consider how we ourselves appear from the point of view of others, and to enter into their feelings about us. Through the eyes of others we become the spectators of our own conduct, dividing internally, as Smith described it, into an actor and a spectator, and forming judgments about the propriety of our own feelings and motives. The internal spectator transforms our natural desire to be thought well of and praised into something deeper, a desire to be worthy of praise. (Korsgaard 2006, 115)

Here is the real internalization necessary to transform sympathy into morality, the internalization not of rules, but of a social judgment of what it means to be worthy of praise. One might trivialize this judgment as simply the desire to be thought well of by one’s buddies, and it might easily become that. But if one’s friends and community belong to the party of humankind, if they share the virtues of wisdom, courage, self-discipline, justice, piety, charity, hope, and humanity, then desiring to be worthy of their praise is desiring to be worthy of the highest things. My list of virtues is Greek and Christian. Hume lists a similar set of virtues, before going on to argue for the close connection, but not the identity, between those virtues that benefit society and those that benefit the individual. Are not justice, fidelity, honour, veracity, allegiance, chastity, esteemed solely on account of their tendency to promote the good of society? Is not that tendency inseparable from humanity, benevolence, lenity, generosity, gratitude, moderation, tenderness, friendship, and all the other social virtues? Can it possibly be doubted that industry, discretion, frugality, secrecy, order, perseverance, forethought, judgement, and this whole class of virtues and accomplishments, of which many

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pages would not contain the catalogue; can it be doubted, I say, that the tendency of these qualities to promote the interest and happiness of their possessor, is the sole foundation of their merit? (Hume 1960, 116)

The desire to be praised shares some of the attributes of Maritain’s chief virtue, love. For, while love is a virtue, it is not an unalloyed virtue. That depends upon how one loves, and whether the object of one’s love is truly worthy. Love, the greatest virtue, is likely to lead us into the greatest folly. So it goes with the desire to be worthy of praise. The wish to be praised is not necessarily good. Noble is the wish to be praised by the best people for the truest virtues. Such nobility requires education and cultivation of the natural desire to be praised, as even such a natural sentiment as love requires education and cultivation, what Maritain means when he says that “love can radiate within a life morally upright . . . . It can likewise radiate . . . within a life of sin” (Maritain 1984, 224). So too can the desire to be praised.

Telling Stories about Our Sympathies Transforms Them into Natural Law Human sensibility, what Thomas called inclinationes naturales, may be the foundation of the natural law, one which, at some level, we share with the higher apes, though the way in which humans share these sympathies among themselves is quite different. Humans share the sympathies that make up the party of humankind by sharing stories. Different small bands of human beings tried out various sets of normative resources . . . stories, myths . . . to define the way in which “we” live. Some of these were more popular with neighbors and with descendent groups, perhaps because they offered greater reproductive success, more likely because they made for smoother societies, greater harmony, and increased cooperation. The most successful ones were transmitted across the generations. (Kitcher 2006, 136–137)

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Though he seems to speculate about genetic transmission when he refers to “reproductive success,” the time span of which Kitcher writes, beginning about 20,000 years ago, seems too short to allow for anything but cultural transmission. At some point, and here I elaborate on Kitcher, these stories became woven into more complex narratives, religious narratives, as de Waal refers to them, about the place of man and morality in the scheme of things, the conjunction of morality with cosmology or theology; narratives about how men and women might arrange their conduct in order to fit into the natural order of the larger world. In fact, one suspects that religion, cosmology, and morality were woven together from the beginning. It is moderns who have separated their narrative strands, not always to our advantage.4 The advantage of viewing the natural law in this way is that “Hume’s problem” disappears almost completely (though we have seen that it was never a real problem for Hume to begin with). Because we are not deriving “ought” from “is,” the unbridgeable gulf between fact and value never emerges. For humans, the world is all value all the time. The disadvantages of viewing the natural law in this way are several (or not), depending upon what one is hoping to gain from the natural law. First, evolutionary natural law does not, and cannot, exist. Moral sensibility exists, but not evolutionary natural law, because natural law requires both the ability to be motivated by an ought, as Korsgaard puts it, and the ability to tell a story about what one is doing, so placing one’s act within the framework of a larger story of humanity’s proper place in the natural order of things. The story that makes sense of the “ought” is natural law, not the mute impulse. The second disadvantage of viewing the natural law from a narrative perspective, at least if one is hoping that the natural law will settle questions of right and wrong, is that the narrative approach reveals that there is no assumption I could make about the natural law that would prove, for example, that theft is always wrong, or even that murder is always wrong in every circumstance (something, by the way, that not even Jacques Maritain [1951, 72–74] believed, as revealed in his discussion of

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the terrible dilemmas faced by French Resistance.5 ) Or rather, there is no assumption I could make that would not depend upon assumptions that themselves are subject to question. Since I have made this argument previously, I will not repeat it here. The best way to proceed is by way of what Ludwig Wittgenstein (1973, part 11) called “aspect seeing.” Approaching the natural law as a story helps us understand that when we ethically judge, praise, or blame, we are not putting an instance under a universal. Instead, we are placing an act within an implicit narrative context. In other words, we are putting the act within a story, such as “this act is bad because it is part of the story we call sexual harassment.”6 The relationship between act and story isn’t one of derivation or definition, but more akin to what Wittgenstein (1973) calls a “family resemblance.” From this perspective, moral debate and discourse become an example of persuasion. Consider the following example: A man tells a dirty joke at work in mixed company. Is he the protagonist in the story called “sexual harassment,” or the story called “fooling around at work by well-meaning boors?” Moral debate and discourse on this issue become a matter of trying to persuade people that the salient aspects of the act (he told a dirty joke) are part of the larger story of sexual harassment. This is why the first move, often called “thick description,” is key, for it is this move that locates the act within the story called sexual harassment, as in “he winked conspiratorially at his men friends as he began his joke.” Or as Wittgenstein put it, there are things that cannot be proved, but can sometimes be pointed out, as in “Here’s why I see the act as part of the story called sexual harassment. Because just before he told the so-called joke he . . . .” Once one locates the act, in this case telling a dirty joke, as part of the story of sexual harassment, one has done one’s ethical work. Once one has done this, one has exercised ethical judgment: judgment in and through an act of rhetoric. Judgment here means not what Kant meant, the application of laws to cases, but an act of interpretation that describes something as something else.

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Pointing out its resemblance to other acts, placing it within a narrative context, is what justifies the use of value-laden words to describe the act of telling a dirty joke as sexual harassment (Levine 1998, 37). Here is the model for all philosophical justification: the higher one goes up the ladder of moral abstraction, from sexual harassment, to “the telos of a good human life,” the more justification looks like “aspect seeing.” This is because there is less and less agreement on fundamentals, less and less accord on the principles one might subsume an instance under, even if one could agree on the character of the instance, which is generally hard enough in itself, as the story about the dirty joke reveals. Because it is concerned with moral sensibility—Aquinas’s inclinationes naturales—the natural law will tell stories that make a direct appeal to human feeling, connaturality, moral intuition, the vibration of the human heart, whatever term you wish. But because we are human animals who use language, these feelings are always mediated through stories. The natural basis—moral sensibility—is real, and can be counted upon (counted upon, alas, also to deceive us), but it speaks to us in the only language it and we know, that of narrative. These narratives can be reconstructed as rules, universals, and all the rest, but the question then becomes why? Is not the natural law, now that we know what it is, enough? Stunted narratives

The new natural law of Finnis and George is a stunted story, for it lacks a developed narrative to go with it. Like so much philosophy, the new natural law solves the problem of the justification of fundamental moral statements by simplifying or eliminating the metaphysical assumptions (assumptions about the human good) behind them. Trouble is, justifying natural law by simplifying its narrative in this way achieves only a simple narrative. Evolutionary natural law is also a stunted story, but one must make a distinction here between the work of de Waal and Arnhart, for example. De Waal’s studies of the origins of

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moral sentiments in primate behavior are composed of dozens of fascinating narratives, one good story after another, only one of which I have shared, the anecdote of Kuni, the bonobo who climbed a tree to release a bird into the air. Together de Waal’s stories tell a compelling tale of chimpanzees and bonobos sharing with us the emotional building blocks of morality. But de Waal isn’t doing evolutionary natural law. He is doing evolutionary morality, or the evolution of morality. Where evolutionary natural law becomes a stunted language is where it takes the evolutionary approach not as a stepping stone, but as a foundation stone, to which natural law must return, and from which natural law dare not venture very far. Returning to an example from Arnhart will make my point. Although the religious doctrine of marriage as a sacrament can support the natural morality of marital bonding, this religious view of marriage can also promote an imprudent dogmatism that goes against human nature. The Catholic Church’s prohibition of divorce, for example, is contrary to the natural pattern of human mating. Once children have reached a certain age, there is no natural need for the parents to remain together forever . . . . While Aquinas concedes this, he tries to argue that permanent monogamy is required by nature to ensure the children’s inheritance (ST, suppl., 67). But securing the inheritance of familial property is important only in certain social and economic circumstances . . . . In industrialized and urbanized societies, husbands and wives have enough economic independence to pursue the natural human inclination to serial monogamy, in which human beings marry, divorce, and then remarry. (Arnhart 1998, 265)

Earlier, I argued that one cannot use the natural law to prove that divorce is wrong, so this is not my objection to Arnhart. My objection is that he has trivialized the natural law. Arnhart titles his book Darwinian Natural Right (1998), but his frequent and extensive references to Aristotle and Aquinas, as well as his explicit claim that “I have assumed the reality of natural ends and natural kinds” (231), reveals that he sees himself writing within the tradition of natural law. In other words, my objection is not directed against a straw man.

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Against Arnhart’s argument about divorce, one might argue, for example, that a lifetime commitment between two people most fully realizes the nature of love as gift of self, much along the lines of Maritain. Here would be the place to tell stories about love in the times of hardship, the despair of disloyalty, the renewal of faith, and the rebirth of hope. It could well be the place to write about marriage as religious sacrament, but there are sacraments that take place outside the bounds of official religion. Whether or not one agrees with every possibility I have suggested, using evolutionary morality to transform natural law into a rational response to changes in the economic dependence of women and children upon men in the age of industrialization seems to miss the point (as well as quite possibly being empirically mistaken). Finally, who says that serial monogamy is more “natural” than a lifetime’s commitment? Arnhart quotes Helen Fisher’s (1992) work on Natural History of Monogamy, Adultery, and Divorce as evidence, but this is hardly what “natural” means in natural law in any case. Natural means the stories people tell about themselves at their human best, to put it as simply as possible. One more stunted story is worth mentioning, the founding story of Western liberalism, Thomas Hobbes, and social contract theory. To some it may seem strange to call Hobbes the first liberal, for he favors an authoritarian state. He does so, however, for strictly “liberal” reasons: to protect the rights of the individual to be free from fear, to be free to trade and pursue commerce, to be free to live his or her private life. Furthermore, his subjects all come together and individually freely contract with the sovereign, giving up rights that are useless in a state of nature in order to gain others. Hobbes is the first contemporary social contract theorist, with the social contract serving individual, not social, goods, even as they turn out to be inseparable. In this sense he is a liberal (Berns 1972). Here, I refer not to Hobbes’ particular view of humans as scared and aggressive creatures needing a mighty sovereign to keep them in check, lest they render each other’s lives “solitary, poor, nasty, brutish, and short” (Leviathan, c. xiii). I refer more generally to his idea of solitary individuals coming together to

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make a social contract so that out of chaos and disorder they might have order. De Waal quotes Mary Midgley, who states that the point is not simply that the social contract wasn’t true, that there never was such a founding moment: “Much more deeply, there was never the need to which that contract would have been an answer” (Midgley 1994, 119; de Waal 1996, 163). In fact, there was such a need, but it was an ideological need, not the immediate practical need Hobbes would seem to have his readers imagine. The ideological need was to convince the restive and newly literate middle classes that they did indeed fear their own, individual violent death most of all. If so, then they might be governed by a central authority that administered the threat of death7 (Johnston 1986). If not, then they, like millions before them, would live and die for clan, family, tribe, religion, or party. If one stops and thinks about it for a moment, there is no more ridiculous proposition than that men fear their own violent death most of all. On the contrary, millions of men and women have gone, often willingly, sometimes eagerly, to their own deaths in the name of their tribe, polis, nation, religion, Führer, or terrorist cell. Though de Waal (1996, 167) is evidently unaware of the history of Leviathan as political rhetoric, he is properly incredulous when he asks, “Are we so painfully aware of the ancient patterns that we crave an antidote?” The answer is yes; we crave an antidote, or rather an anodyne, from the knowledge of how terribly dependent we are upon the group. Hobbes was never the master scientist of man. He was the master rhetorician, using the new, powerful language and imagery of science as geometry and mechanics to persuade fearful men and women to fear the same thing, so that they might be more easily governed. His new science of man was, in a word, a rhetorical trope, a brilliant narrative. What about evolutionary natural law? Is it just one more rhetorical trope, using the science of the day? Yes and no, to put it as simply as possible. If a trope is characterized by irony (among other things8 ), then natural law is itself a trope, for what else is the claim that knowledge of the natural law is the

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discovery of what one already knows, what is already “written on the heart”? The question is not whether evolutionary natural law is a trope, but whether it is a bad trope: yes, when employed by Arnhart; no, when employed by de Waal. Evolutionary natural law is a bad trope in Arnhart’s case because he would transform good natural law into bad science. De Waal, on the other hand, understands that he is not doing natural law, but something more limited, a study of the mammalian bases of the social sentiments, on which the natural law is based, but which the natural law must cultivate and refine, lest our attachment to the group leads us to become the new German robbers. Of course, de Waal doesn’t put it this way, but his self-understanding of his project readily fits this interpretation. If Hume’s and Smith’s insights into the origins of the moral sentiments in the opinions of others, even when elevated into the “party of humankind,” are correct, then the natural law can never avoid the risk of becoming a reflection of popular morality. This is not all bad. It is close to where Maritain ended up regarding international human rights as a type of unwritten common law. I suggested that Maritain’s discomfort with his own conclusion was an inheritance of his religious approach, in which natural law is ultimately an expression of Divine Law, to which there is only one proper interpretation. Nonetheless, Maritain is right to be worried. While the common law natural law has much to recommend it, natural law is not something we vote on, not even by the party of humankind. One might argue that natural law exists independently of all human attempts to know it. True perhaps, but unhelpful unless one wishes to fall back on it in a dogmatic way. What helps is history, as Maritain realizes. The party of humankind extends not just across societies and cultures, but over time. Furthermore, though the sentiments of the party of humankind are universal, the ability to command them is not, as Hume (1960, 113–116) recognizes. History is where we look for accounts of the best the party of humankind is capable of, as well as to the depths it has fallen. Unfortunately, history is too often about warriors, presidents, kings, and battles, too little about the noblest and best men and women living everyday lives.

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One of the tasks of those writing about natural law should be to spend less time founding or justifying the natural law, and more time documenting the lives of those who live it. As part of this study, it would be necessary to consider some of the cultural and institutional barriers to an awareness of the natural law, as well as the different forms and directions that this awareness takes. Noble and good lives come in different shapes and sizes. Determining all these things are empirical tasks, but this does not make the natural law empirical in quite the same way as its study. Or rather, the natural law is revealed by a constant dialectic (or constant comparison, if one wishes to avoid an overused word) between narratives of good human lives and the best human lives, the best humans could possibly live. All the while remembering that this dialogue takes place in history and across cultures, both of which reveal the limitations of our knowledge. These limits should cause us to be modest about what we claim for the natural law, but they should not paralyze us. John Locke has written about these limits, and his warnings about the power of history, culture, and society to dim our vision of the natural law figure in the next chapter.

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Chapter

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Among those who write on international human rights, two tendencies are apparent. The first is to read virtually all the great thinkers of human history as contributing to the development of human rights. Micheline Ishay (2008) is exemplary. While human rights force us to think about universality in political and economic terms, they benefit from such portrayals of brotherly love as one finds in Micah (the Hebrew Bible), Paul (the New Testament), the Buddha, and others, and also, in a different way, from the detached universal love professed by the Stoics, like Epictetus, and advocates like Plato, Aristotle, and Cicero. While the Greek and Roman notions of laws and rights, eclipsed during the Middle Ages, would be reinvoked during the Enlightenment . . . . (19)

Understood as a strictly Western phenomenon, the Enlightenment continues this march of intellectual progress. A new universal discourse of rights took hold, committed to reason and individual free choice, to scientific planning and rules of law, to contractual agreement and economic independence. The emerging

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commercial nation state was then entrusted to diffuse these ideals worldwide in the spirit of peace and cooperation. (Ishay 2008, 69)

Ishay’s vision is roomy, leaving plenty of space for socialism, as well as cautious. She is hopeful but wary of the impact of globalization on cultural and ethnic minorities (2008, 246–311). Nevertheless, Ishay reflects a tendency among some who write about international human rights to write its history in the grand style.1 A contradictory tendency is to write as if international human rights began in the postwar era. While recognizing that “our current notion of human rights has evolved out of earlier notions of natural law and natural rights,” Thomas Pogge (2001, 187) does not think that it is intellectually or even morally desirable that this connection be maintained. We make progress in a secular world by abandoning the natural law idiom, which is not necessarily concerned with the harm we do to other people. One may rather have wronged God, for example, or have disturbed the harmonious order of the cosmos. In ruling out these (formerly prominent) alternative ideas, the shift from natural-law to naturalrights language constitutes a secularization which facilitates the presentation of a select set of moral concerns as broadly sharable in a world that has become much larger and more heterogeneous. (Pogge 2001, 189)

Pogge creates an unnecessary dichotomy, in which one must choose between an outmoded language that worships idols over humans and a contemporary language that puts humans first. Human rights as the culmination of history, on the one hand, and human rights as liberation from a stultifying history on the other: both tendencies reflect the difficulty of many human rights theorists in locating international human rights within the traditions of the natural law and (we shall see) natural rights itself. First, it will help to consider three of the more interesting attempts, including Pogge’s, to locate international human rights in history.

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Ignatieff: Human Rights as Politics and Idolatry Michael Ignatieff (2001, 3) begins with a tale told by Primo Levi, about securing a place in the chemical factory at Auschwitz, a place that meant life rather than death. Levi stood on one side of the desk in his concentration camp uniform. Sitting at his desk, Dr. Pannwitz stared up at him. The look was not between two men; and if I had known how completely to explain the nature of that look, which came as if across the glass window of an aquarium between two beings who live in different worlds, I would also have explained the essence of the great insanity of the third German [Reich]. (Levi 1996, 105–106)

The point of this story, says Ignatieff (2001, 2–3), is that Pannwitz is the alien, for he does not understand the most important point about humanity. “Our species is one,” and each of the individuals who compose the species is entitled to equal moral consideration. How far to push this simple and important point? Perhaps it does not require proof. It is simply a given, and we measure the perversion of men like Pannwitz, and regimes such as the Third Reich, by how far they have fallen away from this fundamental truth. Certainly we shouldn’t let questions of foundations lead us to forget that human rights documents serve first and foremost to protect rights, not to justify them. In this sense, at least, human rights documents are fundamentally political; they are not simply a practical instance of the natural law. In other words, human rights are more important than the documents that assert them. Ignatieff (2001, 20) puts it more flatly when he states that human rights should be understood not as a language “for the proclamation and enactment of eternal verities,” but as a means for the adjudication of conflict. In thinking about human rights in this way, we come to understand that “human rights is nothing other than politics” (21). Human rights provide the moral language for political argument about rights claims, and sometimes to mobilize constituencies for the use of force. But one

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should not confuse the use of moral language of the argument, such as “everyone has the right to life, liberty, and security of person,” with its status and function, which is political. Politics uses moral language all the time, and we do not ask that every moral term be philosophically fundamentally grounded. The same is true with human rights. And, if the reader should reply that the political use of human rights language is generally hypocritical, then the rejoinder is that hypocrisy is the tribute that vice pays to virtue. Sometimes hypocrisy is better than nothing. Where Ignatieff goes wrong is to assume that because human rights documents are political, because it is all too easy for philosophers and academics to focus on foundations, forgetting to ask what human rights do for people, and how they do it, therefore, foundational claims can only divide people. Foundational claims . . . divide, and these divisions cannot be resolved in the way humans usually resolve their arguments, by means of discussion and argument. Far better, I would argue, to forgo these kinds of foundational arguments altogether and seek to build support for human rights on the basis of what these rights actually do for human beings. (2001, 54)

The logic doesn’t follow. Because it is often useful to focus on what human rights do, and how they do it (e.g., Ignatieff argues persuasively that failed states are one of the biggest threats to human rights today), does not mean that foundational claims divide in ways that cannot be resolved. In fact, there is considerable empirical evidence to the contrary. A most convincing piece we have already seen: Jacques Maritain’s (1951, 77) claim that the founders of the United Nations’s Universal Declaration of Human Rights, holding to a half-dozen different foundational or metaphysical positions, were able to reach agreement by means of what Maritain (1951, 78) calls “grosso modo a sort of common residue, a sort of unwritten common law, at the point of practical convergence of extremely different theoretical traditions” (Maritain 1951, 78).

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Mary Ann Glendon (2002) and Amy Gutmann (2001, xxii) hold to a similar view. Interesting is to what degree this “common residue” resembles what John Rawls (1993) calls an “overlapping consensus” in Political Liberalism. Like Maritain, Rawls does not imagine an “overlapping consensus” to be a mere political agreement, compromise, or modus vivendi. The idea of an overlapping consensus is easily misunderstood given the idea of consensus used in everyday politics . . . . We do not look to the comprehensive doctrines that in fact exist and then draw up a political conception that strikes some kind of balance of forces between them. (Rawls 1993, 39)

Rather, an overlapping consensus is an agreement among parties with different fundamental belief systems because they have decided that their fundamental belief systems share a common core, or “reasonable fragment of each of the main comprehensive doctrines of the community.”2 To be sure, there is a decisive difference between Rawls and Maritain. Rawls is concerned with justified or legitimate political stability. Maritain is interested in truth—that each fundamental view that goes into making up the Universal Declaration of the Rights of Man possesses a “reasonable fragment” of this truth, what Maritain calls a “common residue.” Nevertheless, reasonable fragment and common residue are not only strikingly complementary images. The reality they represent, shared agreement on principles of application coexisting with disagreement on fundamentals, is real. There are problems with this ambition, problems more severe than might appear at first glance. Certain familiar views, such as the Roman Catholic position on abortion, reflect a comprehensive doctrine at odds with the laws of legitimate political institutions. Are Catholics who live under these laws not merely compromising? Rawls (1999b, 170) does not believe this is necessarily the case, pointing to Cardinal Joseph Bernardin’s argument in favor of prohibiting abortion in “The Consistent Ethic” (1986), an argument based

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on the values of public peace, essential protections of human rights, and commonly accepted standards of moral behavior in a community of law. While Rawls does not enter into the details of Bernardin’s argument in The Law of Peoples, Rawls does not doubt that Bernardin casts his argument in the form of public reason—that is, as part of an overlapping consensus that includes fundamental disagreement. A tougher case is Sharia, the traditional interpretations of Islamic religious law that are incompatible with the overlapping consensus of Western liberal democracy. In the case of Sharia, the status of women’s rights and the punishment of apostasy are in question. Here, the best answer seems to be to follow the lead of Abdullahi Ahmed An-Na’im (2001), and several other Muslim scholars, who would separate Sharia, a later set of legal elaborations from the Quran and the Sunna. Reform of Islamic law must be in accordance with the Quran and the Sunna (the Prophet’s elaborations), or it will not be seen as legitimate. But Sharia is a historical interpretation given in the context of the Middle Ages (Muhammad died in 632 CE), and there are other ways of reading the Quran and the Sunna that are compatible with international human rights, particularly the rights of women and apostates. The details I leave to the experts.3 The more general point is that overlapping consensus is not a lowest common denominator, but a more demanding standard. I shall use it in that way, abstracting from Rawls’s context, in which overlapping consensus serves legitimate political stability under a just constitutional democracy. As used in this chapter, overlapping consensus refers to agreement on general principles of human rights, as well as how they should be argued for and defended, even if there remains fundamental disagreement on whence these principles are derived, as well as portions of their content. While performing a useful function in reminding us that human rights exist not to engage philosophers in endless argument, Ignatieff has created a false dichotomy between human rights as political tool kit and human rights as philosophical fundamental foundation. There are times when an answer to the question, “Why should the human rights of this or that

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group be protected?” requires a fundamental answer, which means a story that situates human beings within the universe in some way—that is, a religious or philosophical story. There are other times when an answer to “Why?” requires no more than the answer, “Look what they are doing to those poor wretches!” One might put the same point another way, perhaps more to Ignatieff’s liking. If human rights are a tool kit, then they comprise a tool kit made of words wrapped up in a parcel of rhetoric. Sometimes the rhetorical response that will be most effective will invoke humanity’s relationship to the universe. Sometimes the most effective rhetorical response may be virtually wordless, an image of a starving child, for example. To call human rights a rhetorical strategy is not to diminish it. The narratives of philosophy and religion are all rhetoric, designed to persuade. What is important is that the argument fit the task, and Ignatieff is correct that too often the philosophical foundational argument has been employed for a task for which it is ill suited: to mobilize action.

Thomas Pogge Pogge’s argument against the natural law is not confined to the brief summary of it given at the beginning of this chapter. It is bound to his understanding of human rights as specifically concerned with “official” threats to the well-being of others— that is, threats posed by governments (2001, 192). The trouble with natural law, and the natural rights tradition that goes with it, according to Pogge, is that it would oblige one to defend the interests of others against all threats to their well-being, not just threats from the state, and state-like entities, such as organized guerrilla groups. Consider, for example (and this follows Pogge’s example), that someone were to steal the means of my substance, such as my cow or my plow. Without them I will starve. For Pogge, this is not a violation of my human rights. Why? Because human rights violations, “to count as such, must be in some sense official, and that human rights thus protect persons only

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against violations from certain sources.” Governments and their officials, and “probably” organizations such as guerrilla movements, but not the “petty criminal” or the “violent husband,” may violate human rights (192). In some ways this formulation has the advantage of clarity: no natural law, no natural rights, just limits to government, which stem from . . . well, Pogge has decided to leave that question aside, locating it under the category of “official disrespect” (193). And, why shouldn’t governments disrespect their citizens? Because governments are representative of their citizens. In some ways it is a neat solution, especially since it can indirectly address the threat to my life posed by the thief who steals my livelihood, or the spouse who beats me to a pulp. In democracies, governments are made by us all. Therefore, citizens have a duty “to ensure that the social order they collectively and coercively impose upon each of themselves is one under which each has secure access” to the necessities of life (203). Citizens, it seems, have an obligation to vote for the minimal welfare state, including an adequate police force that will protect and defend its citizens. Citizens do not have an obligation to provide for each other, or to protect each other from violence. “Human rights are then moral claims upon the organization of one’s society.” To be sure, Pogge understands that governments often fail their citizens, and that fellow citizens, especially privileged fellow citizens, have a special duty to foster institutional reform, meanwhile shielding the victims of injustice (202). With so many caveats, one might argue that Pogge’s institutional reinterpretation of human rights has no practical bad effects, while having the advantage of carving out a midpoint between a maximalist and minimalist interpretation of human rights. A maximalist, or positive, interpretation of human rights says that human rights covers the entire panoply of rights guaranteed by the United Nations’s Universal Declaration of Human Rights: rights not just to life, liberty, and due process, but rights to a decent livelihood, worker protections, the right to an education, the enjoyment of the fruits of science and the arts, and so forth. A minimalist, or negative, interpretation of human rights

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focuses on the protection of the basic rights of life, liberty, and due process under law. Pogge is able to carve out this midpoint because he allows institutions to do the heavy lifting. Not international human rights, but the institutions against which international human rights protect us (“official” threats), go on to guarantee us a larger set of rights, if and when they are able. Or as Charles Darwin put it, “[I]f the misery of our poor be caused not by laws of nature, but by our own institutions, great is our sin” (Gould 1991, 19). Pogge (2001, 203) quotes this famous line from Darwin, but quite unlike Darwin, he writes on the assumption that there is no sense in which the term “sin” might make any but the vaguest metaphorical claim upon us (Alford 1993). So what’s wrong with Pogge, except perhaps for the cavalier way in which he treats two thousand years of intellectual history? And that’s mostly a matter for professional intellectuals anyway, is it not? Unfortunately, Pogge’s intellectual style is not the problem. The problem is his position. Defending against the state, he has ended up idealizing the state, making it, through its citizens, the guarantor of human rights. Maritain saw the great danger of this in Man and the State. Ignatieff too. The Universal Declaration of Human Rights may be a child of the Enlightenment, but it was written at a time when the Enlightenment had fallen victim to the worship of the nation-state. The purpose of the Universal Declaration of Human Rights was to remind people that the state is not the entity in which rights may be located, or even held by its citizens as a trust. On the contrary, the Universal Declaration of Human Rights was “a studied attempt to reinvent European natural law tradition in order to safeguard individual agency against the totalitarian state.” This from Ignatieff (2001, 65–66), who understands the great tradition he would disagree with. Citizens of states are what states are composed of, and when citizens forget that human rights belong neither to states nor citizens, but to individuals, then these human rights are in absolute danger. Though it is the goal of international human rights to separate rights from states (before the Second World

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War, only states had rights under international law), it is worth remembering Hannah Arendt’s (1973) cautions in The Origins of Totalitarianism about the utter vulnerability of the stateless person. Not the loss of specific rights, but the loss of a community willing and able to guarantee any right whatsoever has been the calamity which has befallen ever-increasing numbers of people. Man, it turns out, can lose all the so-called Rights of Man without losing his essential quality as a man, his human dignity. Only the loss of a polity itself expels him from humanity. (297)

Tying rights to states, even when these states serve, in Pogge’s theory, as trustees for citizens’ rights, is a step backward. It is a step backward because it renders the stateless utterly without rights, placing them in a moral purgatory. And it is a step backward because it leads citizens to think of themselves first of all as members of a polity, not as members of the human race. Arendt was accurately describing the world. Hers was and remains a good argument for the establishment and preservation of the State of Israel, just as Ignatieff argues that failed states pose the greatest danger to human rights (2001, 35). But it is not an argument for locating rights within citizens who belong to states, rather than in persons who belong to the community of humanity. To think like this is a step toward the idolatry of the state, even when it takes the form, as it does in Pogge, of a genuine attempt to protect the individual from the state. You can’t protect the individual from the state while thinking of the individual as first and foremost a creature of the state, even when this creature is granted the status of citizen. Citizen is a political role, not a moral status.

Michael J. Perry Is there any intelligible secular version of the claim that every human being is sacred—or instead, is the claim inescapably religious and the idea of human rights ineliminably religious (Perry 1998, 5)? To this question, Perry answers no; there is no intelligible secular version of the claim that human rights are

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sacred. Along the way, Perry takes on Ronald Dworkin’s conception of what it means to say that a human life is sacred, finding it deeply problematic precisely because Dworkin’s concept is not religious. Terms are obviously important here, and Perry uses the term “religious” in a wide sense to mean a view opposed to Albert Camus’ experience of absurdity, in which I find myself alone in a radically unfamiliar, unresponsive, perhaps even pointless universe (Perry 1998, 14; Camus 1955, 26).4 Religion says that the world is finally hospitable to our deepest human yearnings, that the world was in some way made with the human being in mind (Perry 1998, 14). From this way of thinking about humanity’s place in the universe comes that well-known saying from the Talmud, “He who destroys one person has dealt a blow at the entire universe, and he who sustains or saves one person has sustained the whole world” (Jerusalem Talmud, Sanhedrin 4:8 [37a]). Or as Perry (21) puts it in a clumsy turn of phrase, the “existential yield” of Christ’s teaching that we should “love one another as I have loved you” is a world in which we are all part of one family, and should therefore receive the same gift of each other’s loving care (John 13: 34–35). But if the phrase “existential yield” is clumsy, the sentiment is not. Human rights stem from a vision in which every human life is sacred because the world is hallowed ground, part of a universe in which every life has a purpose and a place, no matter how obscure. What happens when one tries to keep the “existential yield” without the religious story behind it? Some, like Glenn Tinder, hold that without religion, not just Christianity, but Christian morality itself, becomes explicable only in Nietzsche’s terms— as a strategy by which the weak intimidate and suppress the strong. Give up religion, and one must give up “every like view of the universe and humanity. . . . the same thing is true of the idea that every individual possesses incalculable worth.” We must, it seems, give up virtually any and every morality, except Nietzsche’s morality, the morality of the overman. Any other morality is but a lie told by the weak to the strong (Tinder 1989; Perry 1998, 23).

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Enough has been said about the natural law to this point that there should be no need to argue that Tinder has gone off the deep end. Nonetheless, the question remains: What does someone say to a person who asks, “Why should I think of someone who lives in Outer Mongolia as a member of the human family, my human family?” (The irony of this example is that these words—intended to exemplify the perspective of a parochial Westerner—might in today’s world be read by someone from Mongolia, living, working, and studying in one of several dozen countries around the world, including Mongolia.5 ) Religion answers the question, “Why should I care?” Conversely, evolutionary biology tells us that we are not naturally made to identify with distant others in different groups, but with our own group. Which is not to say that identification with distant, even anonymous, others cannot be taught. Indeed, it can be taught in such a way that anonymous others no longer exist. Humans are creatures of imagination and narratives. Religion is the greatest imaginative narrative ever told, capable of bringing an entire universe into its creation story, and so rendering the world and its inhabitants less alien. Religion isn’t the only means by which we make ourselves at home, and in so doing bring distant, alien others into the human orbit, transforming them into people like us. Richard Rorty (2001, 247) argued that “the emergence of the human rights culture seems to owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories.” As examples he refers to Aeschylus’s Persians and Harriet Beecher Stowe’s Uncle Tom’s Cabin. Of course, continues Rorty, “sentimental education only works on people who can relax long enough to listen” (253). This requires the provision of basic physical and economic security, even for those who would violate the rights of others. Then, when they ask, “Why should I care about a stranger, a person who is no kin to me, a person whose habits I find disgusting?” one can answer with the only answer that really works: not some answer about kinship and custom being morally irrelevant to obligation, but something along the lines of “Because this is what it is like to be in her situation—to be far from home, among strangers,” or “Because

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her mother would grieve for her” (Rorty 2001, 254–255). In other words, the goal is not to morally prove or ground one’s obligation to another, but to emotionally cultivate it. The great advantage of religion, from this perspective, is that it is based upon community and ritual, which together create a sacred space and a sense of the transcendent. This is very hard to get from sitting alone in one’s room reading books, the example to which Rorty recurs, in both his essay on human rights (2001) and Contingency, Irony, and Solidarity (1989). At its best, the Judeo-Christian religion brings to the living of daily life a narrative of love. And, if this sounds unlikely, consider how more unlikely it is that this love, or at least active identification with the suffering of others, would come from reading novels at home. And yet, if Lynn Hunt (2007, 35–69) is correct in Inventing Human Rights, it is no coincidence that the greatest novels of psychological identification of the eighteenth century, Samuel Richardson’s Pamela (1740) and Clarissa (1747–1748), and Rousseau’s Julie (1761), were published in the period that immediately preceded the appearance of the rights of man. What’s the connection? Widely read, these novels helped develop not the capacity for empathy, which is given, but the ability to deploy it so as to imagine that others unlike oneself, including servants, members of the underclass, might also have rich inner lives. With this imagination, the individual was born, and with the subjective individual came a subject of rights. And, if Hunt is a little too quick to attribute causation to correlation, as we say in social science, it would be equally mistaken to dismiss the possibility that novels could reflect and transmit changes in the larger culture. If this is so, then why not simply conclude that religion and novels that foster a sentimental education are likely to reinforce each other, and let it go at that? Because what Perry really wants, as it turns out, is Truth. More precisely put, he wants to transform the experience of the sacred into a “foundational claim,” so as to have an answer to the “definitional” strategy. Arthur Allen Leff (1974) characterizes the definitional strategy as follows.

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There is today no way of “proving” that napalming babies is bad except by asserting it (in a louder and louder voice), or by defining it as so, early in one’s game, and then later slipping it through, in a whisper, as a conclusion. (quoted in Perry 1998, 29)

The problem is that the experience of the sacred isn’t a foundation. Perry would create a sacred foundation via an act of definition, arguing that Ronald Dworkin has it wrong when he claims that life is sacred because we feel awe at the complex creative process that produces the single human organism, a mysterious creative masterpiece whose destruction causes us to recoil in horror. In honoring the individual human, it is as though we are honoring an instance of sacred art (Dworkin, 1993). What Dworkin is trying to do, of course, is to separate the experience of the sacred from religion, as if one could argue that the awe Dworkin refers to is akin to a religious or spiritual attitude, even though it does not take place within the framework of organized religion. Not for Perry (1998, 28), who argues that sacred is an objective experience, not a matter of “sacred to you,” or “sacred to me,” but “a matter of how things really are.” It does not matter whether you experience human life as sacred, or not. Human life really is sacred, and the only argument that can back that up is the claim that sacredness stems from the fact that we are all created in His name, whomever or whatever one chooses to call The Supreme Being. Only this guarantees that the world we live in is a meaningful place to share with one’s fellow humans—that is, not absurd. It doesn’t matter whether you or I believe this to be true. Or rather, it matters more than one can say, but not for the purposes of the current argument. What matters for the purposes of the current argument is that Perry, like Leff, is pursuing a definitional strategy. The difference is that Perry doesn’t know it. Calling it religious doesn’t make it any less definitional. It’s just a definition that invokes religion, as in “I define human life as sacred because humans were created by a Supreme Being; as a result, we are all members of the same human family.”

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If the reader is concerned about why an argument asserting religion or God has the quality of a definition, then the answer is that all fundamental assertions have this property. Hans Albert (1985, 18–21) has called the problem that leads to this result the Münchhausen Trilemma, after the fabled Baron who tried to pull himself out of the swamp by his own pigtail. The idea is that any claim to fundamental foundations must in the end be characterized by one of three unacceptable (in terms of the search for meaningful, and not merely tautological foundations) choices: 1. An infinite regress, in which every challenged claim is met by another claim which is in turn challenged. At some point, it becomes impractical to go any further, and thus this strategy cannot provide a certain foundation. 2. A logical circle, in which the stated claim is found to rest on statements that have already shown themselves to require foundation. 3. A dogmatic breaking off of the search for fundamental grounds at a certain point. This strategy is feasible, probably the most widely practiced, but it means an unjustified abandonment of the principle of sufficient reason. Perry makes the third choice. All this isn’t to say that our choices must become arbitrary or irrational decisions—“decisionism,” as it is called. On the contrary, Albert (1985), following Karl Popper, stresses the way in which a critical attitude toward truth claims in philosophy, characterized by arguments that do not close the door to further argument, is quite possible. Socrates represents such a critical attitude. One might also argue (and this would be my preference) that about fundamental metaphysical matters, such as whether God has ordered the universe so as to render human life sacred, reason alone will not see us through. Faith (fidem) must be blended with reason. Not for natural law to be possible, but for Perry’s version to make sense. The best answer to those who are not sure that it is wrong to napalm babies is to tell stories. Rorty calls for “sad and

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sentimental stories,” but in this case “graphic and horrifying” stories would be more appropriate. Images are equally important, such as the famous image from the Vietnam War of a young girl running naked down a dirt road, her skin burned from the napalm jelly that appears to be still clinging to her. (Her name is Phan Thi. Kim Phúc, and the photo can be found by Googling “napalm girl photo,” where one can also find a touching interview with her.) For those with a more systematic cast of mind, cosmological stories, religious stories, stories about humanity’s place in the universe, may be more compelling. Stories about God’s love for us, about His charge that we love one another as He has loved us, inspire millions to care for each other, and perhaps millions more to at least pretend they do, which is sometimes better than nothing.6 If someone questions your religious story, you have a choice. You can elaborate upon your religious story, trying to convince another that your story really resonates with his or her inner experience, his or her deepest desire to feel at home in this world, which is but another way of saying feeling loved. Millions of converts have been made in this way. Or you can try to tell your story in a different idiom, searching for a lingua franca. For some, this might be evolutionary biology; for still others, it might be the natural law of Jacques Maritain, built as it is on feelings of love and care that assume a systematic theology, but more often than not argue from the heart, the intuitive ways of knowing he called connatural knowledge. As long as one believes in the core elements of the stories one is telling, then the search for a common story would not seem to violate the principles of Rawls’s overlapping consensus, what Maritain refers to as “grosso modo,” the point of convergence of different theoretical traditions. It was at this point that the Universal Declaration of Human Rights was written and ratified. But stories are not always enough. Napalming babies occurred during the Vietnam War, and for many, civil disobedience was the answer. Some went to prison for a night; others for months or years. Academics like narratives, and the religious like conversions. It is worth remembering that politics is sometimes about laying your body on the line for what you believe.

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Bodies often speak more eloquently than words. Jesus Christ is “The Word made Flesh” (John 1:14). For mere mortals, there comes a time to choose the actions of the flesh over words, in order that our words might have meaning, rising above the usual academic drone.

John Locke, Human Rights, and the Natural Law Substantial disagreement about the status of human rights exists among those who write professionally on the topic— that is, those who include within their primary audience other experts, such as Ignatieff, Pogge, and Perry. Frequently this disagreement is fruitful; almost always it is thoughtful. Such disagreement is generally lacking among those who write the readers and textbooks that introduce the field of international human rights to a growing body of undergraduate and graduate students. These authors agree that John Locke’s writings on natural right constitute the modern foundation of human rights thinking, which culminates in the Universal Declaration of Human Rights and other postwar human rights documents. Trouble is, Locke’s writings on natural right are presented in a vacuum, separated from his writings about the natural law, in which they are embedded. To put it simply, Locke would grant men natural rights so that they might follow the natural law, a reading one would never imagine from the way in which Locke’s natural rights are presented to the undergraduate and graduate reader. In The Evolution of International Human Rights, Paul Lauren (2003, 15) mentions natural law and Locke in the same breath, but refers to the rights of Locke’s Second Treatise of Government solely in terms of “natural rights,” never once referring to or mentioning natural law again. In Making Sense of Human Rights, James Nickel (2007, 12, 92–93) treats Locke strictly as a natural rights theorist, never once mentioning the natural law background to his thought.

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In The History of Human Rights, Micheline Ishay (2008, 57, 88, 110, 285, 578) treats Locke strictly as a natural rights theorist, assuming (and this is a common assumption) that the social contract is designed to enforce our natural rights. To be sure, the relationship of Locke to natural law is a complicated affair, a few scholars following the lead of Leo Strauss in arguing that Locke was an atheist, whose mastery of esoteric writing concealed his unbelief. The result of such an interpretation is that Locke’s natural law is fundamentally no different than Hobbes’ natural law: one’s only “obligation” is to one’s own life and property. The social contract is merely a more efficient means to fulfill this obligation.7 Many scholars, however, hold that natural law, not natural rights, is primary for Locke: natural rights exist so that we can perform our obligations under the natural law8 (Dunn 1969; Ashcraft 1987). When Locke claimed we possess the rights of life, liberty, and property, he was primarily making a claim about the duties we have under natural law toward others: duties not to kill them, enslave them, or to steal from them.9 Locke also recognized a general duty to assist in the preservation of humanity, including a duty of charity to those who have no other means of subsistence. Consider Locke’s language in the First Treatise of Government. Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from extreme want, where he has no means to subsist otherwise; and a Man can no more justly make use of another’s necessity, to force him to become his Vassal, by with-holding that relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master him to his Obedience, and with a Dagger at his Throat offer him Death or Slavery. (para. 42)

This is the language, and thinking, of the natural law. For Locke, the state of nature is designed to reveal our basic rights and duties under the natural law (Dunn 2003, 53–54).

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In other words, Locke’s state of nature is the condition of men and women under the natural law, before governments are established. Under this state of nature, the fundamental task of men and women is to determine the laws under which God intended them to live—that is, to figure out the natural law. Here was the crux of the problem for Locke. He had no doubt that humans have the ability and the duty to understand the natural law, as well as the capacity to observe it. But from at least the early 1680s until the end of his life, Locke was increasingly troubled by the question of how men could distinguish the dictates of natural law from the prejudices of their own society (Dunn 2003, 53–54). This appreciation of the fallibility of human minds in grasping the natural law, which Locke saw in terms of the tendency of men to see in natural law the prejudices of their own place and time, is the greatness of his thinking about the topic. For it leads Locke to set limits to what the natural law may know, as well as fosters a certain modesty about our knowledge overall. To be sure, there are contradictions within Locke’s own treatment of the natural law, contradictions that reflect his modesty about the claims of human knowledge. To mention just one, in An Essay concerning Human Understanding, Locke defends a theory of moral knowledge that denies the existence of innate ideas (1975, 1.2.5–25). However, in the Second Treatise of Government (2.11), Locke seems to assert the existence of innate ideas, or rather that every individual has direct access to the natural law, “so plain was it writ in the Hearts of all Mankind.” But perhaps this confusion is our own, as though Locke must deny the natural law if he denies the existence of innate ideas. This need not be the case. Locke’s chief intellectual problem is not, in the end, whether men and women can know natural law through an act of unaided human reason. Toward the end of his life, in The Reasonableness of Christianity (1958, 75 [para. 252]), Locke seems to have come to the view that even if men are unable to know the natural law through the use of pure reason, God granted humans sufficient reason to know the basics. “God . . . gave him [man] reason, and with it a law,

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that could not be otherwise than what reason should dictate.” This is standard natural law thinking, at least in the seventeenth century. For Locke, the key problem remains one of how men might distinguish genuine natural laws from the contingencies and prejudices of the society in which they happen to live. If, as Locke (1975, 180) suggests in An Essay concerning Human Understanding, when men come together they usually find “their simple ideas all generally to agree,” then it must be something else that accounts for the apparent diversity of their ideas, and the prejudices that so many of these misjudgments reflect. The answer, says Locke, is that men become confused because “they perhaps confound one another with different Names.” Add to this surfeit of names the fact that men are generally insufficiently reflective, and the result is that they are frequently unaware that in fact they stand in agreement about the basics, if they would but listen to each other and themselves. If thoughtful men and women would come together and talk about the fundamentals of the natural law, our duties not to harm, enslave, or steal from each other, our duty to provide charity to others in need, then out of this discussion, begun in a babble of tongues, general agreement would come to pass. If, that is, men would not just talk with each other, but reflect on what they and others are saying. This may not seem to be asking a lot, but Locke is quite aware that it is the exception. Such an agreement would participate in what Rawls calls an overlapping consensus. It would be more than a political compromise. The participants would agree on fundamental principles, even if they continued to use different names, and more importantly, continued to live different ways of life insofar as they concern laws, traditions, and customs not covered by the natural law. A key element in achieving and sustaining such a consensus is Locke’s recognition of its limitations, based on what Locke calls the “mediocrity” of human understanding (1975, 4.12.10). By this he means that humans should not try to know too much by the power of reason, for unaided reason is a weak faculty. But if reason is a weak faculty, its real but imperfect authority may be strengthened by a knowledge of its

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limits, the collaboration of others, and above all, by a willingness to reflect honestly upon what one knows, distinguishing this knowledge from what one wishes one knows, or could know. It is in this vein that we should understand all the twists and turns Locke takes to get to this point, particularly his failed struggle in An Essay concerning Human Understanding to derive natural law from first principles, much in the way mathematics is derived (1975, 3.11.16, 4.3.18–20). He never accomplishes this derivation, and in The Reasonableness of Christianity (1958), states simply that “ ’tis plain in fact, that human reason unassisted, failed men in its great and proper place in morality. It never, from unquestionable principles, by clear deductions, made out an entire body of the law of Nature” (61 [para. 241]). This has led some to conclude that Locke’s speculations about natural law are either incoherent or a failure. One might as readily conclude that he understands the weakness of men’s minds, the need for Divine assistance, and the fact that even this offers no guarantee. Not the unfathomable character of natural law, but the mediocrity of men’s minds, even when aided by Divine intercession, should lead us to be modest in what we claim for natural law—that it binds us not to kill, enslave, or steal from others, while requiring us to exhibit charity to all in need. Other good things, of which there are many, are the product of civilization and progress, not dictates of the natural law.

Relevance to International Human Rights Such modesty about the natural law—avoiding the tendency to locate all good things under the natural law, remains the most difficult temptation for many human rights theorists to resist. Consider the Universal Declaration of Human Rights, the template of so many human rights instruments. Article 24 asserts the right to “periodic holidays with pay.” Article 27 asserts the right to be recognized as the creator of one’s intellectual property, and to be paid accordingly. Can we really say that the right to a paid holiday, or to copyright protection, is somehow on a par with the rights with which Locke is concerned?

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More fundamentally, can we even claim to know that “periodic holidays with pay” has the status of a human right? What would this mean? When one claims knowledge of the natural law, from which human rights are derived, that is so specific that it allows us to know that individuals have a natural right to join a union, have access to a professional education (Article 26), enjoy the arts (Article 27), and be secure in the knowledge that they will be recognized and paid for the use of their intellectual property, one is claiming a knowledge that presumably does not exist. This is no longer an overlapping consensus, but a political compromise that devalues both the natural law and natural rights. Better that we see human rights as the complement of the natural law, expressing in terms of rights the duties and obligations we are bound to fulfill under the natural law. As Leszek Kolakowski (1990) puts it, [H]uman rights are the modern version of natural law theory . . . . There is no substantial difference between proclaiming the ‘right to life’ and stating that natural law forbids killing. (214)

There is no reason we should not continue to speak in terms of human rights; there is no need to recast every statement about human rights into the language of the natural law. However, it is useful to remember from time to time that any sensible discussion of natural rights assumes its foundation in the natural law. Furthermore, this has consequences: If we take the natural law seriously, and If we take seriously Locke’s warnings about the “mediocrity” of human understanding, and If we take seriously Locke’s further warnings about the tremendous potential of humans to confuse their traditions and customs with the natural law,

then our natural law will be about only the most basic things, the most fundamental wrongs, the most grievous injuries. Not just, or even primarily, because it is about these that an

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overlapping consensus can be achieved, but because about more than this it is difficult for mediocre culturally, historically, and socially situated minds to know. And of course even then there is no guarantee. Negative human rights

Negative human rights is another term that has been employed to capture this vision of a real but limited natural law, whose content roughly follows that outlined above (Cranston 2001, 163–173). The term “negative” is not pejorative; it stems from an attempt to draw an analogy between negative and positive human rights, and Isaiah Berlin’s (1969) distinction between negative and positive liberty. With the term “negative liberty,” Berlin refers to the removal of impediments to my action and the right of self-governance. With the term “positive liberty,” Berlin refers to means that might allow me to fulfill some of my hopes and dreams more fully, such as a good education, decent health care, and the like. Berlin concludes that while positive liberty might indeed enhance my liberty, in the end not every good thing falls under the concept of liberty.10 In a loosely analogous fashion, Maurice Cranston (2001, 169) argues that human rights are universal. They do not and should not depend in any way upon the situation of the person to whom they pertain. They are rights that pertain to an individual merely by virtue of being a human being. Rights that assume that an individual lives in a particular Western industrial order cannot be universal. What sense does a right to join a trade union, or “periodic holidays with pay,” or to share in the fruits of the arts and sciences, or copyright protection, make in the subsistence agricultural economies under which about half of the world’s population still lives?11 Furthermore, compared with the real available alternatives, many willingly choose to practice subsistence agriculture. Subsistence agriculture is not just a way of farming, it is a way of life (Waters 2008). The social (positive) rights that begin with about Article 20 of the Universal Declaration of Human Rights are simply inapplicable in large parts of the world.

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The Universal Declaration was written with a certain type of industrial economy at a certain stage of development in mind. Let us not call the political rights that are fitting to these economies “universal human rights.” Especially now that we understand that human rights are an expression of natural law, and the great danger is not only that they are ignored, but that they are trivialized, by forgetting the mediocrity of the human mind, as expressed (in this case) by the tendency to extrapolate ideal social and economic conditions in one’s own society onto an entire world, one that may not want them, at least in the form in which they are offered. The comments in the last paragraph are my own, but they are compatible with Cranston’s (2001) point about the tendency to push all talk of human rights out of the clear realm of the morally compelling into the twilight world of utopian aspiration. In the Universal Declaration of 1948 there indeed occurs the phrase a “common standard of achievement” which brands the Declaration as an attempt to translate rights into ideals. And however else one might choose to define moral rights, they are plainly not ideals or aspirations. (172)

Rights, concludes Cranston (172), are obligations. They are what is demanded by the basic norms of morality or justice. Though he does not mention the natural law, this is precisely how the natural law would conceive of human rights: as the duties we have toward others. Still, one might argue, aspirational human rights, as they are called, have their place. They establish aims and ideals, and there is no reason not to see human rights as possessing an ideal, or “ought” component, as well as an “is” demand (Weston 1992, 17). Developing countries, particularly, may benefit from a moral road map. Furthermore, aspirational human rights make no unreasonable demands. A very poor society in the midst of a famine is not expected to provide everyone the means of subsistence if it is physically unable to do so, though of course one expects that it not hinder attempts at international aid for political purposes. Even civil rights may be violated in a very poor society without the society itself being held in contempt

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of international human rights if the society simply lacks the means to protect all its citizens. Manifesto rights, a frequent synonym for aspirational rights, require us to think about what particular societies are capable of, lending a degree of social and national specificity to human rights that would otherwise be lacking (Pogge 2001, 202–205). Against this argument it is hard to disagree. At the most fundamental level, human rights exist to make human lives better, not to justify their own foundations. The only question is whether aspirational or manifesto rights do not end up weakening or trivializing the basics, which are themselves in constant danger. The rights to life, liberty, property, and the means of subsistence are threatened all over the world. If one wishes to add another right, then integrity of the person would seem the place to start, for it is both natural law and natural right to respect and protect the integrity of the person against rape and other grievous infringements, offenses that seem to have become a part of civil war (if that is what it is, and not just rampage) in some parts of the world. To put these rights on a par with the right to join a trade union, paid holidays, and a chance to appreciate the arts somehow doesn’t just miss the point, it trivializes the point. As long as the aspirational or manifesto rights with which Pogge and others are concerned remain at the level of assuring basic human dignity, there is no problem. The problem arises when Western standards of industrial life become the measure of the good life. Not only is that not possible for all, it may not even be desirable. Certainly the natural law is not going to be very helpful here. For that humans minds are simply too mediocre. To claim for the natural law one particular Western way of life risks committing precisely the error Locke warns us against, confusing our circumstances and traditions with the natural law itself. Previous chapters have emphasized love and pity over reason. Maritain’s inclinations seem a more powerful way of thinking about natural law than Thomistic reason, or rather a more powerful interpretation of the traditional Thomistic way of thinking about inclination. But about international human rights, Locke

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is in some ways a breath of fresh air. It is said we suffer from “compassion fatigue.” Certainly we suffer from a surfeit of images of suffering. Locke reminds us that natural law is not just about compassion and love. Natural law is about duty: our duty not to kill, enslave, or take the possessions of others, our duty of charity, and our duty to intervene when we see these things happening, as Locke talks about our duty to restrain, and even kill, a murderer in the state of nature (Second Treatise of Government, 2.11). He is not just talking about self-defense. Duty, love, and pity do not contradict each other. Love, pity, and intuition deserve the greater emphasis when reason seems to be getting all the attention. Duty deserves extra emphasis when empathy seems to be doing all the work. Or not enough. Locke’s duty, it is important to point out, is not self-given. That is, Locke’s duty is not Kantian (Locke was born more than a century before Kant). Locke’s is an older sense of duty, not assumed as part of human freedom, but taken up as a duty owed to nature and nature’s God. Or as Václav Havel states, Only someone who submits to the authority of the universal order and of creation, who values the right to be a part of it and a participant in it, can genuinely value himself and his neighbors and thus honor their rights as well . . . . It seems that man can realize that liberty [given him by the Creator in the United States Bill of Rights] only if he does not forget the One who endowed him with it.”12

It is on this basis that the United States, a model of human rights to the world (always a flawed model—after Abu Ghraib even more so), was built. Respecting otherness is negative human rights

One thinks back to Niebuhr’s criticism of Thomas’s confidence in reason, always overstated, not to say off the mark when applied to Maritain, who understood better than any the role of love in the natural law. Nevertheless, Niebuhr (2008, 222–224) is not wrong to caution us that arrogance and vanity infects everything we do, including our claims about the natural law. We become vain because we forget that we are not just creators,

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but creatures. To this analysis Niebuhr adds another dimension, what can only be called a respect for the otherness that exists in this world, and which is known best through participation in community. The only humility that works, suggests Niebuhr, grows not out of a sense of justice, or duty. A belief strictly in justice and duty leads invariably to injustice, as it leads the just man or woman to become overly confident in his or her possession of justice, and to an overly narrow interpretation of his or her duty (2008, 138). The only humility that works is one that grows out of the experience of belonging to a community. From this experience, if we are fortunate, we may learn not only that we need one another, but also that about other ways of life, “that other unique community is the limit beyond which our ambitions must not run and the boundary beyond which our life must not expand” (2008, 139). Listening to others, attending to their stories, is the beginning, but only the beginning. Niebuhr constructs his argument in response to George F. Kennan’s (1985) claim that the national interest should be the touchstone of our foreign policy. While there is an ethical element to Kennan’s argument, namely that we are much more likely to know what is good for us than what is good for others, Niebuhr (2008, 148) seems correct to label Kennan’s position as “egotism.” However, the larger framework of Niebuhr’s argument can be seen as filling in Havel’s statement about our having lost touch with our status as created beings. Indeed, this is the leitmotif of Niebuhr’s work: not just the recognition that we are members of a universal order, but that we are created to live with our neighbors who have not just rights, and toward whom we possess not just duties (though both are important), but others who possess an otherness that properly evokes awe and respect from which justice and duty flow. Respecting this otherness reflects the negative view of human rights at its most profound. A negative approach to human rights is in no way minimal. On the contrary, it reflects maximal respect for the otherness of the other individual, the other community, the other way of life, recognizing that while we have obligations to this other, our most profound obligation is to let

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the other be. That is, to let the other live and flourish in his, her, or the community’s own way. Sometimes this respect requires love, care, charity, even going to war on behalf of the other. At other times it involves simply letting the other be. Getting the balance right is no easy matter, but who ever said it would be? This is why we need to talk about what we are doing, with ourselves, and frequently with the other. About such a delicate balancing act mute intuition will only get us started.

Chapter

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Conclusion: Evil and the L i m i t s o f t h e N at u r a l L aw

Two definitions of the natural law compete. The first sees natural law as “reason reflecting upon nature.” The second understands natural law as “written on the heart.” The first stresses the rational, reflective element of natural law—that while natural law is based in nature, it is known through reason. Furthermore, the nature upon which reason reflects has little to do with empirical, everyday nature as it is studied by science, including anthropology. The nature with which rational natural law is concerned is human nature as it could be, human nature at its fully developed best. Human nature that has realized its telos, its developmental goal. The second definition, natural law as written on the heart, stresses the less rational, more intuitive dimension of natural law. Natural law is less something we know than feel, acting upon it as we act upon emotions such as pity, empathy, sympathy, or just knowing the right thing to do in a particular situation, even if one cannot explain it at the time. Such knowledge, for that it remains, assumes a prelinguistic consciousness: there are things we can know as surely as we know anything that we cannot put into words, even if we can eventually find ways of talking about the ineffable.

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Pain might be a good example of what it means for knowledge to be written on the heart. I know when I am in pain, and yet whatever words I can put to that experience will never be adequate to the experience, even if my shrieks and cries and moans can be remarkably evocative, evoking painful feelings (but almost never bodily pain itself) in the sensitive bystander. Knowledge that torture causes terrible pain, and so should never be tolerated, is an example of the type of knowledge that is written on the heart. Worth pointing out, however, is that the heart is not isolated from history and culture. For thousands of years, the pain inflicted by torture was tolerated (and sometimes idealized) by various societies, and still is. Just read the opening pages of Michel Foucault’s (1995) Discipline and Punish for a description of how men and women may take joy in the public dismemberment of a human being, in this case Robert-François Damiens. Damiens attempted the regicide of Louis XV in 1757. Several relatively recent essays and books on international human rights refer to a report by David Rieff in the New Yorker of a Serbian atrocity. Richard Rorty’s use of Rieff is quoted, because I want to make a point about Rorty. In a report from Bosnia some months ago, David Rieff said, “To the Serbs, the Muslims are no longer human . . . Muslim prisoners, lying on the ground in rows, awaiting interrogation, were driven over by a Serb guard in a small delivery van.” This theme of dehumanization recurs when Rieff says, A Muslim man in Bosanski Petrovac . . . [was] forced to bite off the penis of a fellow-Muslim . . . If you say that a man is not human, but the man looks like you and the only way to identify this devil is to make him drop his trousers—Muslim men are circumcised and Serb men are not—it is probably only a short step, psychologically, to cutting off his prick . . . . There has never been a campaign of ethnic cleansing from which sexual sadism has gone missing. (Rieff 1992; Rorty 2001, 241–242)

Rorty goes on to argue that the “moral to be drawn” from Rieff’s account of Serbian atrocities is that the men who do

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them are not wicked or evil. They simply do not see Muslims as humans like themselves. In this sense, they are deficient in moral imagination. Rorty makes a number of sensible suggestions, but it is here I want to pause—at Rorty’s assumption that the failure of the Serbian moral imagination is sufficient to explain atrocity. In particular, Rorty (2001, 242–244, 248) assumes that nothing “deep” is going on, that progress in seeing the fruitlessness of debates between followers of Plato and Nietzsche over “What is our nature?” is similar to the progress that is made when one recognizes that those who commit gross abuses of human rights are not evil or sadistic monsters. Nor are they less rational than those who treat others well. Serbian and Nazi war criminals were simply not so lucky in the circumstances of their upbringing. They were deprived of a sense of security and sympathy, and so of the capacity to develop a sense of empathy for others (Rorty 2001, 253). What would lead Rorty to make such a claim, especially since Rieff’s reference to the devil, coupled with the presence of sexual sadism in ethnic cleansing, suggests that there is in fact a great deal of imagination going on, just not of a very healthy type? The fact that Rorty is committed to the view that everything important, at least as far as philosophy is concerned, is on the surface. If there are psychological depths, they need not be plumbed. As Rorty (1989) puts it in Contingency, Irony, and Solidarity, [It] is essential to my view that we have no prelinguistic consciousness to which language needs to be adequate, no deep sense of how things are which it is the duty of philosophers to spell out in language. (21)

Let’s ignore the “duty” and “adequacy” claims, for different philosophers have different duties, and language is adequate or not depending upon the use to which it is put. Instead, let us consider the central claim that Rorty seems to be making— that a complete explanation of Serbian or Nazi atrocities can be given that argues that the offenders were unfortunate in being brought up in an environment in which they were not

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taught to be sensitive (i.e., to develop an empathic imagination) to others unlike themselves (2001, 253). They were not taught this because it was not part of their culture’s way of thinking, and because the conditions of life must be sufficiently safe so that one’s security does not depend on devaluing others. Why does this seem so absurd? One reason is because of the disproportion between the terrible torments inflicted by the torturers and murderers, on the one hand, and the explanation on the other. Is the Holocaust a failure of empathy? Is forcing one man to bite off the penis of another a failure of imaginative identification? To be sure, the world may be absurd, and so we should not reject an explanation that highlights this absurdity out of hand. What Rorty’s explanation overlooks (or rather, does not allow to come into existence) is that so many of the most terrible abuses of human rights seem to involve an element of sadism, sexual or otherwise—that is, pleasure in destruction for its own sake, what is ordinarily called evil. The natural law has not always paid enough attention to evil, but the tradition of the natural law understands the darkness of the human heart. As Thomas pointed out about the German robbers, it was not merely that they failed to understand that robbing their neighbors was wrong, a failure that might be interpreted as a failure in empathy. The German robbers lived a way of life that expressed and perpetuated an “evil disposition of nature,” so that reason itself became wicked (ST I–II, 76, 1). Their way of life redounded to corrupt reason and understanding itself. Similarly, Maritain understood that history is providential only in the long run. The history that we live may become hell, “l’univers concentrationnaire . . . a nightmare of a society,” one that has brought an undreamt-of evil into the world. An evil that challenged ordinary morality, including the natural law (Maritain 1951, 72). The belief that natural law is written on the heart (a less elevated way of talking about “prelinguistic consciousness”) allows the possibility that other things are written there too, less pleasant things, destructive things, evil things, desires that are not immediately accessible to language, expressed in acts of evil that

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beggar the imagination. Though he was no natural law theorist, Sigmund Freud wrote late in his life about the conflict between love and death (by which he meant hatred and destruction) as the force that made the world go around. And now, I think, the meaning of the evolution of civilization is no longer obscure to us. It must present the struggle between Eros and Death, between the instinct of life and the instinct of destruction, as it works itself out in the human species. This struggle is what all life essentially consists of, and the evolution of civilization may therefore be simply described as the struggle for life of the human species. (Freud 1930, 121–122)

Natural law has sometimes hesitated to grant evil a sufficiently prominent place. The reason goes back to Saint Augustine’s view of evil as privation of the good. Evil is not an active force in its own right; evil is the absence of good. Augustine held this view because he believed that the world and everything in it is made by God, and God makes only good. “Every creature of God is good,” says Paul to Timothy (1 Timothy 4:4), a passage cited by Aquinas to make the same point as Augustine: evil does not exist, except as the privation of the good (Summa Contra Gentiles, book 3, part 1, c. 4). Consider a familiar example used by countless generations of teachers to explain Augustine’s view of evil, that of a lovely garment spoiled by a rent in the fabric. The tear in the fabric is nothing substantial. On the contrary, the hole has the quality of nothingness where something good should be. That’s what Augustine means by evil, or so countless teachers have taught their students. Instead, imagine that evil is the deliberate rending of the fabric, the intentional destruction of the beautiful and good because it is beautiful and good. If so, then evil as the privation of the good comes close to the death drive that Freud writes about: pleasure in destruction.1 Aquinas came close to this view in practice, understanding the way in which the heart could become corrupt. Even Augustine had to struggle with his apparent pleasure in the destruction of some pears simply out of satisfaction in their ruin.

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Coming out of a religious tradition that attributes all things to a Providential God, natural law has often unwillingly confronted evil. Having come face-to-face with the terrible twentieth century, Maritain wrestled with the topic in the most serious vein, understanding that against the concentration camp, against genocide, men and women who hold to the natural law are themselves drawn into “historical, social relativity.”2 And if the logical conclusion is total adaptation to a corrupted environment, then men and women must, it seems, trust themselves to be able to step into history without being merely logical. Or rather, they must trust themselves to a higher logic that cannot be written or prescribed in advance, one that will whisper insistently to us when it is time to stop. For if men and women cannot act in an evil world without becoming evil, then they, and we, shall have no choice but to become evil ourselves if we are not to become mere bystanders to horror. In these circumstances, the natural law serves more as dilemma than guideline, as the good itself seems to require evil, such as the killing of evildoers, and those who abet them. Nor is this a dilemma to be dismissed lightly. Even when the natural law whispers to us that it is time to stop, will our fear and fury prevent us from listening? These remarks are made to remind the reader that natural law’s emphasis on the human good must not be misinterpreted so as to make light of the active presence of human evil in history. The memory of evil has little to do with natural law’s Greek heritage. For Plato’s Socrates, evil was a matter of ignorance. One did wrong only because one failed to understand that doing right would make one happier in the long run (Meno 77c–78b). Aristotle understood the possibility of what the Greeks called akrasia, or weakness of will: one could want to do right, but still be too weak-willed to do it (N. Ethics, book 7). However, the sheer malevolence that the concept of evil evokes was absent in the Greek understanding altogether, unless perhaps one turns to an unusual tragedy, such as Euripides’ Medea. Natural law owes its confrontation with evil to its biblical roots. For even as Augustine and Aquinas fail to confront evil

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head-on, its presence in the Judeo-Christian tradition enriches the narrative possibilities of natural law. “For from within, out of the heart of men, proceed evil [kakos] . . . . All these evil things [poneros] come from within and defile the man (Mark 7:21–23, King James version).” The same heart that knows natural law knows evil.3 Neither in Rorty’s account, nor the new natural law, nor in evolutionary natural law, is there room for Milton’s Satan, for whom evil would become the good. Only the natural law tells a story about the human heart that is sufficiently complex that it could become a place where good and evil battle unto death—not just of the individual, but the species. Consider the evil about which Saul Friedländer (1993, 109–111) writes, the intoxicating ecstasy (Rausch) that seized the leading architects of the Holocaust as the goal of eliminating an entire people seemed within their grasp. Here is no mere absence of goodness. Here is no mere failure of imaginative identification, due to a deprived upbringing. Here is an evil vein that runs deep in the human heart. Steeped in the biblical narrative of good and evil, natural law knows the malevolence of the heart, even if the natural law too has sometimes turned away from the disturbing reality of the allure of destruction. Would it be fair to say that Jacques Maritain comes to hold to the position of Michael Ignatieff, who states that today “the necessity of [the] moral law is sustained no longer by belief in reason but by a memory of horror” Ignatieff 2001, 80)?4 Yes and no. For Maritain, the moral law was never sustained by reason alone, but by connaturality, the instincts of the human heart. But since the terrible twentieth century, it has become even clearer that the better instincts of the heart are driven not only by what it loves, but also by what it recoils against: the sheer brutality and terror of so much of contemporary experience, in intensity as well as scale. The heart is complex, and filled with contradiction. Its goodness must be cultivated, sometimes by confrontation with evil. Even goodness is not enough. Sometimes the natural law seems to require acts that would themselves otherwise violate

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the natural law, such as the taking of life in order to save more lives, an issue for which there is no easy answer. International human rights provide some guidelines as to what constitutes a violation of human life sufficient to require action on the part of others, but little guidance as to the type of action, including the use of deadly force. But, as Maritain suggests, perhaps this is all we may expect of the natural law. What we may expect of ourselves is that we do not hide behind the natural law in order to preserve our moral integrity, nor that we abandon its principles in order to act. Rather, we must take upon ourselves the burden of acting in the name of the natural law, with no clear warrant (certainly not our own) that we are acting with proper authority. The existential burden of choice is not lifted from us by the natural law. On the contrary, the natural law only intensifies the burden. The term “existential burden of choice” means not only what Jean-Paul Sartre (1956, 708; 1999, 41) meant: accepting responsibility for all that I choose. The burden of choice also refers to accepting this responsibility in light of Locke’s insight into the mediocrity of men’s minds when confronted with the claims of the natural law. Above all, that we do not claim for the natural law more than it can bear. We know that the natural law forbids us from killing, enslaving, or stealing from others, while requiring us to exhibit charity to those in need. We believe we know that the natural law forbids gross assaults on the integrity of the person. We believe we know that the natural law entitles us to take the law of nature into our own hands when there is no other to enforce it. Beyond this we are left on our own—to the wisdom of the community, to our own reflection enhanced by discussion with others. What is this reflection about? About what is written on the heart. The locus of the natural law is private, individual, but its content must be shared. In other words, natural law must become subject to the dialectic (to use the term in its oldfashioned sense of dialogue) if the natural law is not to become the idiosyncratic preserve of individuals, rather than the shared insight of the community, its proper status.

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Paying Attention The first step in taking on this burden of choice—that is, responsibility for the natural law—is a willingness to look. Willful ignorance of the bad, as Thomas reminds us, is itself a transgression of the natural law. Part of pursuing sociability and knowledge, one of the first requirements of the natural law, requires that we look around us at what’s happening to others (ST I–II, 94, 2). A student of George Orwell captures his moral particularism, his emphasis on looking closely at the world, this way. Observe closely what’s going on around you; pay attention to its particulars and try to understand why they are what they are; you will often know when something you see or have proposed to you is offensive to the natural order; when you know this, protest it, remove your cooperation from it, refuse to listen to those who offer theoretical justifications of it, and do what you can to prevent it from continuing. This won’t, thinks Orwell, solve all political and economic problems. Some can only be addressed at the theoretical level . . . . [But] In the kinds of cases that interest him, Orwell thinks that the clear eye can be sure that what is recommended is wrong—surer than the intellect can be of the upshot of any theoretical argument at a high level of abstraction. This conviction lies at the heart of an Orwellian epistemology. (Griffiths 2004, 38)

When one looks at the world this way, one simply knows that kicking a coolie, procuring an abortion, abject and systematic poverty, and the destruction of natural beauty (to use four of Orwell’s examples) are wrong.5 One might argue that this knowledge is not the transcendent knowledge of the natural law. But perhaps we need less transcendent knowledge of right and wrong, and more practical everyday knowledge, based simply on looking. Looking that is in tune with the sympathies of the human heart, on the one hand, and an awareness of evil on the other. The knowledge gained represents the two sides of the same coin that is the natural law. The second step (for looking for evil, even with a sympathetic heart, is not enough) is sharing this awareness with others.

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Writing books is one place to start, but natural law requires communities of others with whom to share knowledge of the evil one has found, as well as the chance to talk about and practice the good life for humans. Here, it might be useful to think of natural law as comprising two parts. First, that part referred to by Locke when he refers to our duties not to kill, enslave, or steal from others, as well as a duty of charity. There remains, however, that other dimension of natural law that concerns our excellence as humans, a dimension that will include duty, but involves so much more. Here, narrative comes into its own, the stories we tell each other of good human lives well lived, the dialectic of narrative and inclinationes naturales, compared and contrasted in books, in communities, in lives. In doing this dialectical work, we construct a narrative source of meaning against all the meaninglessness in our lives, and in the world. Meaninglessness that leads not only to despair, but to acts of evil desperation, as men and women seek to impose a human order on an empty world, an act that almost always ends in wickedness and corruption. One should neither under- nor overestimate this source of evil. The urge to destroy is not simply an existential revolt against meaningless. The urge to destroy reflects a primitive pleasure, what Friedländer calls Rausch, all its own. But the urge to destroy does not exist in an economic, social, and political vacuum. If it did, then history would be nothing but the history of destruction, and it is not. The urge to destroy seems to flower most freely in those places and eras in which men and women are wrenched from their history and traditions, and thrust into the mob. Certainly this was Maritain’s (1929) insight in Three Reformers: Luther, Descartes, Rousseau. It is the insight of the personalism of Maritain and Mounier. It is equally Hannah Arendt’s (1973) insight in The Origins of Totalitarianism, in which she writes that loneliness, the common ground for terror, the essence of totalitarian government, and . . . the preparation of its executioners and victims, is closely connected with uprootedness and superfluousness which have been the curse of modern masses since the beginning of the industrial

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revolution and have become acute with the rise of imperialism at the end of the last century and the break-down of political institutions and social traditions in our own time. (475)

For Arendt, there is a direct line between the concentration camp and mass society. One need not go that far to see her point. Though Edmund Burke wrote before the rise of modern totalitarianism, he shares with Arendt the insight that the uprooted and superfluous masses may themselves become the greatest enemy of freedom.6 This is the theme of Reflections on the Revolution in France (1955). Where Burke differs from Arendt is in having no vision of how the radicalization of democracy might itself change this. Arendt (2000a) writes of this vision in “The Revolutionary Tradition and its Lost Treasure,” referring to the system of democratic councils and wards established in the immediate aftermath of the French and American revolutions, and regrettably short lived. On the other hand, who could deny that Burke’s concerns were unwarranted? Not even Arendt. Burke was not a man who failed to look around him. On the contrary, he looked around and saw the abuse of the Irish and East Indian in the face of the will to power barely disguised as law. What he only rarely seemed capable of doing is what Arendt refers to as allowing “one’s imagination to go visiting.” As Arendt (1977) says, The more people’s standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and the more valid my final conclusions, my opinion. (241)

About such an attitude one must be careful. The natural law is not arrived at by “representative thinking,” not even when all the representatives are gathered in one’s own mind. Her great example of one who allowed his imagination to go visiting is

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Socrates, a man not known for his love of democracy, representative government, or the opinion of the average man, except as foil for his own.7 Allowing one’s imagination to go visiting refers primarily to the ability to participate in imaginary dialogues with others, speaking with oneself as if one were the other person, in order to enrich the dialogue one might have with oneself. Arendt (2000b) thought Socrates did this, and it is what made him a moral man.8 Participating in such dialogues requires what is usually called empathy, and it may be cultivated in a variety of ways, from reading novels to talking with strangers, to putting oneself in new and unusual (marginal) situations. Participating in such dialogues is one of the most important ways humans have of paying attention to others. Why would such dialogues foster the natural law, and not cultural relativism, a new Tower of Babel, mutual hostility, or simply mutual incomprehension? For the same reason that the philosophers’ advisory committee to the UNESCO Committee drafting the Universal Declaration of Human Rights did not break down into incoherence, but found what Maritain called a “grosso modo a sort of common residue, a sort of unwritten common law.” For the same reason that John Locke concluded that people confuse themselves, exaggerating their differences, because they use different words for the same things. In trusting in such dialogues, one is trusting that inclinationes naturales exist, and that they are roughly the same for all men and women, even as they often find different cultural and historical expression. This assumes, of course, that the participants in such dialogues are free to participate: unconstrained by force, fraud, or false-consciousness, a concept that still has its place. Until that time, it is well to remember that sometimes—not always, but sometimes—one listens to the natural law best by not listening to others. Determining when this might be is one of the hardest things in the world. Natural law does not exist to settle arguments

Natural law does not exist to settle arguments about the best way of life. Locke was right. History and circumstance,

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traditions and customs, are so overwhelming in their influence on the human mind that it is best not to claim the imprimatur of the natural law when we are not speaking from the perspective of the common law natural law. Only when we speak from the perspective of the common law natural law, Maritain’s “common residue,” may we have some confidence that the culture and history that Locke saw as such obstacles to the natural law have been not so much suspended as taken fully into account. That is, that we are not just hearing part of the story. What about slavery or segregation, thoughtful people may reply? Most people whose voices were thought fit to be heard believed both were just fine at certain times and places, and yet we know that these practices always violated the natural law. Indeed, that’s the point of the natural law—that it does not depend on voting, or even consensus. This is what gives natural law its power—that it is not a creation of the day, or a time, or a place, a people, or even a consensus of peoples. True enough, and certainly all this makes it tempting to turn to the natural law when, in the midst of the turmoil of the day, one wants to find a ground outside of time, culture, and circumstance on which to rest one’s argument. Trouble is, natural law does not exist to settle arguments. The more contentious an argument, the more it divides the public, the more skeptical we should be of those who argue on the basis of natural law. We should be skeptical about their knowledge claims, for who can know the natural law for certain in all but the clearest cases? We should be even more skeptical about their understanding of the proper place of natural law in the human world. Was it not a valid strategy to invoke natural law against segregation, as Martin Luther King Jr. did in his “Letter from Birmingham Jail”? Yes, but notice what King was doing: mobilizing supporters using the language of the natural law as part of the language of political persuasion. As Ignatieff (2001, 20) points out, the language of human rights—and this applies equally to the language of natural law—is properly used as part of the moral language of political argument, as well as to mobilize political constituencies. However, those who do so should be wary, at least when in the midst of political conflict,

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of believing that a means of political mobilization can, when seen from a slightly different perspective, be simultaneously transformed into a natural law. Let there be no doubt that slavery and segregation violated the natural law, then as much as now. One may, however, doubt whether those who fought slavery and segregation using natural law as a rallying cry were in the best position to know the natural law. Not because knowledge of the natural law requires quiet reflection—perhaps natural law is sometimes best known from the victim’s end of a truncheon or fire hose—but because a deep and reflective knowledge of the natural law takes time, community, and dialogue, which must include those of differing faiths, beliefs, and persuasions. In other words, natural law (like international human rights) serves several functions, only one of which is that of providing a foundation for our beliefs. One should not confuse these functions. Like international human rights, it may well be that the founding function of natural law is less important than its political and mobilizing function. If this is so, one must be particularly careful not to claim for the natural law more than its due, lest we cheapen natural law’s discursive, dialectical function in the name of righteous political struggle. There is room enough for both functions. It is no transgression to argue that the natural law supports my claim that a certain way of life most abundantly fulfills human nature. One should simply understand that one is using the natural law in its political and mobilizing function, which is not the same as its discursive, dialectical function, the function that lies behind the common law natural law. There is room for both, they may even enrich each other, but the two functions should not be confused, for they are not the same.

N ot e s

Chapter 1 1. The process of drawing out implicit but unformulated knowledge by the method of dialectic, or question and answer. Maieutic is from the Greek, meaning to act as a midwife. 2. The Endlösung, the so-called Final Solution (the mass murder of six million Jews), was never written into law. However, the steps that led to the mass murder were written down at the Wannsee Conference, which was held in Berlin on January 20, 1942. The records of this meeting were found intact by the Allies at the end of the war and served as evidence during the Nuremberg Trials. Other written evidence was also available to the Allies, including Reichsführer Heinrich Himmler’s speech to a secret meeting of SS officers in Poznan, Poland, on October 4, 1943, in which he openly referred to the ongoing extermination of the Jews. Needless to say, there is no dearth of physical evidence. 3. www.stanford.edu/group/King/popular_requests/frequentdocs/birmingham.pdf. 4. This is a little too simple, of course. Glaucon and Adeimantus are elder brothers of Plato and are eventually convinced by him. Thrasymachus of Chalcedon is a sophist, one who speaks not so much the brutal truth, as one who will make the weaker case the stronger. In the Republic, however, he is rendered as one who believes in a particularly harsh version of “might makes right.” 5. A confession: I’ve been telling this story for so long now, that while I remember the tone of my conversation with the student, I don’t remember whether the avalanche image was from the student or from something I had read that fit his point perfectly. 6. Edmund Burke, “Tract on the Popery Laws,” quoted in Edmund Burke and the Natural Law, by Peter J. Stanlis

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(2003, 44). I have found Stanlis helpful on Burke as a natural law theorist. V. Bradley Lewis’s introduction to Stanlis (2003) is useful in setting a wider context. 7. Burke, in Stanlis (2003, 49). Burke argued that American colonists be treated with all the rights of Englishmen; he certainly did not favor the American Revolution. 8. Burke, “Speech on Fox’s East India Bill,” 1783, in Burke (1990). 9. Ibid.

Chapter 2 1. This version of the story is drawn from G. K. Chesterton (1956, 43–45), with the exception of the girdle of fire, which comes from other sources. Thomas’s dream is the most mythic element, and while not necessarily untrue, different versions abound. Especially because we do not know where fact stops and myth begins, the temptation to psychoanalyze should be resisted. 2. I draw from Josef Pieper’s Guide to Thomas Aquinas (1991, 45–47) on this point. 3. The correspondence of mind and reality. 4. Dennehy is referring only indirectly to Thomas, and directly to Jacques Maritain, which only makes Dennehy’s comment more puzzling. 5. This is admittedly an old-fashioned view, in which a law of nature exists in the world much as physical phenomena do. Paul Feyerabend’s Against Method (1993) did much to disabuse the scientifically naive of that notion, but it was a view that did not need much disabusing among philosophers of science in the first place. 6. The Greek term used by Aristotle for cause is aition (Metaphysics 1013a), a term with a much wider range of meaning than our term “cause.” The English term “make” has been suggested as a term with a similarly wide range of meaning. 7. Thomas’s use of final cause as a proof of God’s existence (ST Ia, 2, 3) is a quite different (though related) use of the concept. 8. Lecture by S. M. Cohen, at faculty.washington.edu/smcohen/ 320/4causes.htm. 9. Eternal Law is not the same as Divine Law. Eternal Law is not revealed by church or scripture, as is the Divine Law.

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Eternal Law stands behind Divine Law; it is what Divine Law would interpret for us, not always and automatically correctly. 10. This section on Aquinas’s reasoning draws on Gregory Doolan’s “Maritain, St. Thomas Aquinas, and the First Principles of Natural Law” (2001). 11. The most well-known representative of the “modern” view is Immanuel Kant (1724–1804), who stated, [T]hus far it has been assumed that all our cognition must conform to objects. On that presupposition, however, all our attempts to establish something about them . . . have come to nothing. Let us, therefore, try to find out by experiment whether we shall not make better progress in the problems of metaphysics if we assume that objects must conform to our cognition. (Kant 1996, 21; B, xviii)

12. The “original position” refers to John Rawls’s Theory of Justice (1999a), but I use it here to signify almost any state of nature, a common fiction in political theory that assumes that society begins when individuals come together to form a community or regime. On the contrary, individuals are always already in a community, as Thomas understands. More on this claim in chapter 4 on evolutionary natural law. 13. One can at least imagine a world in which parts add up to more than their sum; if so, then the world must be a certain way for the axiom to be true. If the reader replies that “the whole is equal to the sum of its parts” is a tautology, I reply that it is not difficult to imagine a cartoon with parts overwhelming the whole that is supposed to contain them. Since the world is not that cartoon, I conclude that the world must be a certain way to support our tautologies. 14. My interpretation of Thomas on connaturality draws on Taki Suto’s “Virtue and Knowledge: Connatural Knowledge According to Thomas Aquinas.” These examples are from Suto. (2004, 64) 15. Alasdair MacIntyre suggests in After Virtue (1981) that the heroic ethic is one of several plausible alternatives to that laid down by traditional natural law. 16. Reflecting a strikingly new ethic, and way of thinking, laid out by MacIntyre in Dependent Rational Animals (1999). 17. See Alford, Psychology and the Natural Law of Reparation (2006), 105–109, for a discussion of pity at Athens.

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18. For details see Wikipedia, “The Greatest American” .

Chapter 3 1. I was helped by a website on Jacques and Raïssa Maritain, now evidently no longer online (or at least I can no longer find it), posted by James Arraj. It seems unlikely that either Raïssa or Jacques ever seriously considered suicide. In any case, this is Raïssa’s account, not Jacques’s. 2. Hawthorne’s prose poetry is from his “The Old Manse.” 3. Since Maritain’s Notebooks (1984) is out of print, the reader will have an easier time finding this material online at the Jacques Maritain Center at the University of Notre Dame, http://maritain.nd.edu/jmc/etext/nb07.htm. Maritain is remarkably self-revealing in his notebooks, at least by academic standards. Helpful to me was James Schall’s discussion of Maritain on love and friendship in his Jacques Maritain: The Philosopher in Society (1998, 151–157). 4. John Dunaway’s (2002, 316) translation of Maritain’s “Le Cantique des cantiques: une libre version pour l’usage privé.” 5. Because we never know what the other wants and needs, we must give him or her everything, and to all the others too. This, I take it, is Levinas’s message. See Alford, Levinas, the Frankfurt School, and Psychoanalysis (2002). 6. In Freud’s late work, such as Civilization and its Discontents (1930), Eros is not just the sex drive, but the drive of life in all its forms. Against it Freud sets the Todestrieb, the death drive. It is between these two great forces that civilization struggles. “And now, I think, the meaning of the evolution of civilization is no longer obscure to us. It must present the struggle between Eros and Death, between the instinct of life and the instinct of destruction, as it works itself out in the human species” (Freud 1930, 122–123). 7. Richard Crane’s “Maritain’s True Humanism” (2005) is helpful on Maritain’s view of history. 8. Amato (1975, 125–147, passim) is helpful on Maritain’s personalism, and I draw on his book. 9. Ibid. While Three Reformers, originally published in 1925, must be considered antidemocratic, Maritain was to question

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11.

12.

13. 14.

15. 16. 17. 18. 19. 20.

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his position on democracy within the year. The impetus was not only the horror of the First World War, but Pope Pius XI’s condemnation of Action Française, a right-wing group with which Maritain was sympathetic at the time. In any case, Maritain followed a long and crooked path to his acceptance of pluralist democracy. Ecstasy, transport, and rapture are some of the standard translations of this German term. The connotation in the current context is the thrill of destruction and transgression of a sacred boundary, not just taking a life, but eliminating a people. Eventually Augustine concluded he destroyed the pears for other reasons, in order to belong to the group of pear thieves. I’m not sure he even convinced himself (Confessions II.viii.16). For Kant, radical evil is a defect (malum defectus) not of reason but of will, which transforms morality into the servant of desire, so that we can do what we want with a good conscience. The similarity to Augustine’s concept of evil as the absolutization of my will is striking. Like Augustine, Kant excludes in advance the possibility that someone would want to destroy the good because it is good, for that would assume “a thoroughly evil will . . . and thus the subject would be a devilish being. Neither of these designations is applicable to man” (Kant 1960, 30–32). Evidently, some possibilities are just too horrible to consider. Which does not, unfortunately, make it impossible that these possibilities exist. Lt. Calley, the only one of over a dozen killers at My Lai to be punished, received three and a half years’ house arrest. Commissions have been established in Argentina, Canada, Chile, El Salvador, Ghana, Guatemala, Liberia, Morocco, Panama, Peru, South Africa, South Korea, and East Timor. This list is not exhaustive, and the states included depend partly on how one defines a truth and reconciliation commission. Maritain (1951, 66–67) quoting Alinsky quoting Tocqueville. The term is from the title of a book by David Rousset, a political prisoner held in several Nazi concentration camps. I am elaborating on a dilemma suggested by Maritain. Kraynak (1998) is helpful here. Grosso modo is Italian for in a rough way, or approximately. Courses in Western civilization generally teach the JudeoChristian tradition as central to the history of the West.

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Chapter 4 1. Hume discusses the problem in book III, part I, section I of his A Treatise of Human Nature. [Quote changed into modern English using the e-books edition, ebooks.adelaide.edu.au/h/ hume/david/h92t/B3.1.1.html] In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.

Hume’s problem has been given the dramatic name of “Hume’s Guillotine,” by Max Black (1964). 2. Hobbes met Galileo in 1634, when the former was 46 and the latter 70. 3. Long held to be distinctly human, attribution is readily found in the higher apes. For example, if chimpanzee X doesn’t know where some hidden food is, but if he knows that chimp Y does, then X will follow Y in order to find out. Conversely, chimp Y will look in all sorts of places the food isn’t, in order to throw chimp X off that track. That’s what it means to say that about some things, at least, chimps have a theory of mind (de Waal 2006 69–75). A theory of mind seems essential to the moral act of taking the perspective of the other. 4. In The Elementary Forms of Religious Life, Émile Durkheim (1995) argued that both religion and morality stem from the human tendency to project our needs upon the cosmos, by which Durkheim means the human world rendered sacred and divine. His book was based on his study of Australian Aborigines, whom he believed were the oldest living human group on earth, one whose religious nature revealed “an essential and permanent aspect of humanity” (xxxii). For Durkheim, it was the social world, experienced as the source of life and

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7.

8.

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transcendent meaning (even as most of society’s members are unaware of this fact), that was the true source of religious feeling. Such a view is compatible with natural law, which remains rooted in human relationships. One should take no comfort in semantic distinctions, such as between killing and murder. My discussion of narrative as philosophical explanation is indebted here, and in chapter 2, to Peter Levine and his work Living without Philosophy (1998). One is tempted to say that Hobbes wrote Leviathan in defense of the royalists exiled in Paris, where Hobbes was also residing in exile. However, the book’s apparent atheism so infuriated some royalists that Hobbes sought protection from the revolutionary government in England, which was none too pleased with Leviathan either, but again for reasons having more to do with religion than politics. Eventually, Hobbes was allowed to return to England by the parliamentary party. In the end, Leviathan was too abstract and theoretical to provide much comfort to either party. A trope is a rhetorical figure of speech, a way of turning (the literal Greek meaning of the term) a word from its original meaning to a new meaning. Irony, metaphor, allegory, synecdoche, and many puns are all types of tropes. A trope, then, is not just the turning of a single word. In the case of an allegory, the trope is a metaphor sustained over the length of a story.

Chapter 5 1. It is not impossible to write “little histories” of human rights. Lynn Hunt’s Inventing Human Rights: A History (2007) focuses on the impact of the epistolary novel during parts of eighteenth-century Europe, and the way in which these novels fostered an imagination for the feeling of others, an imagination that made it plausible to claim that “We hold these truths to be self-evident.” 2. Fred D’Agostino, “Original Position,” in Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/originalposition/. 3. Sharia was not developed until the second and third centuries of Islam, and did not become a comprehensive legal and ethical

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4.

5.

6.

7.

8. 9.

system until well into the third century of Islam, the eight and ninth centuries CE (An-Na’im 1990, 315–334). Anyone familiar with the last lines of Camus’ The Stranger (1988), in which Meursault says, “I opened myself to the gentle indifference of the world,” knows that Camus’ attitude toward the absurdity of the world does not come down to a few lines from The Myth of Sisyphus. “Outer Mongolia” has not existed since the early part of the twentieth century. Sometimes the name “Outer Mongolia” is still used to refer to Mongolia, an autonomous state, as opposed to so-called Inner Mongolia, a province of the People’s Republic of China. I have decided not to enter into the question of just war theory, which is an aspect of natural law, but is not an aspect of natural law that finds much resonance in recent writing on international human rights. Just war theory would not prohibit the napalming of babies tout court. It would ask whether every effort had been made to avoid civilian casualties in pursuit of a just cause. The basic categories of “distinction” (directing the war against enemy combatants), “proportionality” (the level of aggression and damage must be proportional to the good achievable), and “military necessity” (targets and objectives must be military) are all designed to limit civilian causalities. By these criteria alone, not even the few just wars fought in the twentieth century have been fought justly. Of all the issues with which contemporary Straussians disagree with the master, and there are a number, none arises more frequently than Strauss’s interpretation of Locke in Natural Right and History (1999, 202–251). For an interesting account of this disagreement among the Straussians, see James R. Stoner, “Was Leo Strauss Wrong About John Locke?” www.claremont.org/publications/pub_print.asp?pubid=260. This view is sometimes associated with the so-called Cambridge School. What Locke actually says is that “being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker . . . they are his Property, whose Workmanship they are, made to last during his, not one anothers Pleasure” (Second Treatise of Government, section 6).

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10. Michael Ignatieff, in Human Rights as Politics and Idolatry (2001, 57) defines human rights in terms of agency, and agency in terms of “what Isaiah Berlin meant by ‘negative liberty,’ the capacity of each individual to achieve rational intentions without let or hindrance.” If individuals have agency, Ignatieff believes, they can protect themselves against injustice. 11. For the noncontroversial claim that about half the world’s population still relies on subsistence agriculture, I rely on data collected by NASA. See http://missiongeography.org/ subsist1student.pdf. 12. Havel on receiving the Philadelphia Liberty Medal at Independence Hall on July 4, 1994 (New York Times, July 8, 1994, op-ed page, contains the text of his entire address).

Chapter 6 1. In fact, the death drive is more complex than this, for Freud is concerned not just with the pleasure in destruction, but the desire of the organism for the cessation of all stimulation. This is one of the most controversial and least accepted assumptions of Freud’s metapsychology, and I do not assume it here (Freud 1920, 34–43). 2. Maritain (1951, 73) is quoting the French writer David Rousset about his experiences in German concentration camps, but the sentiment expressed here is, I believe, close to his own. Maritain does not agree with everything Rousset has to say. 3. Sometimes it is argued that the Old Testament has little to say about evil (ra’). It’s not true, for what are the Commandments against killing, lying, and stealing but injunctions against evil? (Exodus 20). See Alford (1997, 62–63). 4. Ignatieff attributes his view to Isaiah Berlin (1998). 5. Orwell’s four examples are (in order) from a newspaper column written in 1940, recalling his first experience of Asia in 1922; Keep the Aspidistra Flying; The Road to Wigan Pier; and Coming up for Air. 6. Burke’s notion of freedom is “old Whig,” or classically liberal, at whose core is a distrust of arbitrary power. “There is no[thing] which [we] account . . . more dear and precious than this, to be guided and governed by the certain rule of law . . . and not by any uncertain and arbitrary form of government . . . not in accordance with received general laws.” (Hayek

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1960, 163–168). Along with Linda C. Raeder, I assume that the views of Hayek and Burke are virtually identical on this point. www.nhinet.org/raeder.htm. 7. With Arendt (1958, 80–82), I assume that Socrates regarded his own views as opinion, doxa, not episteme (knowledge), even as he believed episteme exists. In Hannah Arendt and the Challenge of Modernity, Serena Parekh (2008, 78) interprets Arendt’s view of Socrates in this fashion. “For Socrates, the dialectic method not only is not opposed to doxa, but rather its function is to reveal the truth of doxa . . . . This is Socrates’ midwifery.” 8. It did not necessarily make the historical Socrates an empathetic man, at least if we are to believe the dialogues of Plato, in which Socrates is portrayed as closer to a “rational stone.” See Martha Nussbaum, The Fragility of Goodness (2001, 199). One must look to Greek tragedy to find empathy, the argument of Nussbaum’s book. And, of course, to Aquinas’s misericordia.

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Index

Note: the letter ‘n’ followed by locators denotes note numbers. absolutism, 69 absurdity, 63–5, 117, 137, 156n4 affective cognition, see connaturality after-knowledge, 53–4, 68 After Virtue (MacIntyre), 9 akrasia (weakness of will), 140 Albert, Hans, 121 Alford, C. Fred Avalanche Man story, 9–10, 149n5 ethics curriculum experience, 7–8 on teaching Korean literature, 79–80 Alinsky, Saul, 69–70 L’amour fou (“mad love”), 54–8 angelism, 61 An-Na’im, Abdullahi Ahmed, 112 Antigone (Sophocles), 2, 22, 42 Aquinas, see Saint Thomas Aquinas Arendt, Hannah, 116, 144–6 arguments, settling of, 146–7 Aristotle final cause concept, 26–7, 29 formal cause concept, 28, 39–40 knowledge of reality, 26 megalopsychos, 41–2 metaphysics of, 39–40 naturalism of, 74 natural reality of, 24 Nicomachean Ethics, 43 worldview, 9

Arnhart, Larry, 91–2, 93–4, 101–2, 104 Artists’ knowledge, 52–3 aspect seeing, 99, 100 aspirational rights, 130–1 see also human rights atheism, 30 attachment, human, 91 attention, paying, 143–6 Avalanche Man story, 9–10, 149n5 awareness, sharing with others, 143–4 Banville, John, 89–90 basic rights, viii see also human rights Bergson, Henri, 49–50 Berlin, Isaiah, 129 Bernardin, Joseph, 111–12 Bible, spirit of, 24 Biden, Joseph, 10–11 biological nature, 93 Bloch, Ernst, 71 Bloom, Allan, 6–7 body politic, 69, 72 The Book of Evidence (Banville), 89–90 bourgeois civilization, 67 bourgeois individualism, 59–60 Bourke, Vernon, 14 Bryce, James, 74 Burke, Edmund, 16–20, 46–7, 145

170 Camus, Albert, 65, 117 Cassin, René, 78 categorical imperative, 86 Catholic Church, 91–2, 101, 111–12 choice, see existential burden of choice Christian democracy, 73–4 Cicero, 21–3 civic law, 4 Civilization and its Discontents (Freud), 152n6 civil rights movement, 71 civil society, 69, 70, 80 The Closing of the American Mind (Bloom), 7 common good, 72–3 common law natural law, 77–81, 104, 147 common residue, 110–11 communitarian ideal, 8 community, 32, 40 community-supporting traits, 87–8 connaturality Aristotelian metaphysics and, 39–40 knowledge by inclination, 14 locus of, 70 love of knowledge and, 35–9 as moral intuition, 13 considered reflection, 53–4 The Consistent Ethic (Bernardin), 111–12 Contingency, Irony, and Solidarity (Rorty), 119, 137 Copleston, Frederick, 84 Corning, Peter, 90–1 Cranston, Maurice, 129, 130 Creative Intuition in Art and Poetry (Maritain), 53 creative love, 76 cruelty, 65 cultural relativism, 8

Index Darwin, Charles, 92, 115 Darwinian Natural Right: The Biological Ethics of Human Nature (Arnhart), 91–2, 101 death drive, 58 Decalogue summary, 40 decisionism, 121 definitional strategy, 119–20 dehumanization, 136 Dennehy, Raymond, 26 Descartes, René, 61–2 destruction, meaninglessness and, 144 see also Rausch (intoxication of destruction) de Waal, Frans community-supporting traits, 87–8 on empathy, 94–5 evolutionary morality, 100–1 evolutionary natural law, 104 on religions, 90 social contract theory, 103 dignitarian rights/tradition, 78 Discipline and Punish (Foucault), 136 discourse/dialectic, 38–9 Divine Law, 150–1n9 Divine revelation, 24 divorce, 92, 101–2 domination, 46–7 Dunaway, John, 68 Durkheim, Émile, 154–5n4 Dworkin, Ronald, 117, 120 East India Company, 17 emancipation, 68 emotional contagion, 94 empathy/empathizing, 94–5, 146 Endlösung (Final Solution), 149n2 Enlightenment, 107–8 An Enquiry Concerning the Principles of Morals (Hume), 95

Index Eros and death, 139, 152n6, 159n6 and evil, 57–9 An Essay Concerning Human Understanding (Locke), 125–7 Eternal Law, 5, 17, 30, 150–1n9 ethical judgment, 99 ethics, 138 evil as absence of good, 139 avoidance of, 30 biblical roots, 140–1 as challenge to natural law, 138 confrontation of, 139 as defect of will, 153n12 and Eros, 57–9 Evolutionary Ethics: An Idea Whose Time Has Come? (Corning), 90–1 evolutionary natural law human behavior and, vii is/ought problem, 87, 98 morality/moral sense, 88–9, 96 as rhetorical trope, 103–4 shared ideals, 91 as stunted narrative, 100–5 tracking lineage of, 21 The Evolution of International Human Rights (Lauren), 123 existential burden of choice described, 142 paying attention, 143–6 existential yield, 117 The Fall, 44–5 final cause concept, 26–7, 29 Final Solution, 149n2 Finnis, John, 30, 84, 85–6, 100 First Discourse (Rousseau), 62 first principles derivations from, 15 derived from natural law, 127 long-term error and, 33 speculative knowledge of, 31

171

First Treatise of Government (Locke), 124 Fisher, Helen, 102 formal cause concept, 28–9, 39–40 Foucault, Michel, 136 foundational claims, 110, 119–20 founding fathers, 74 freedom, 68, 74–6, 78 French Revolution, 17 Freud, Sigmund, 57, 58, 139, 152n6 Friedländer, Saul, 63, 141, 144 friendship, 32, 35, 54–5, 57 fundamental foundations, 121 Gandhi, Mahatma, 71 Geneva Convention (1977), 5 George, Robert, 30, 84, 85, 100 German civic law, 4, 12 German robbers/warriors, 40–1 Glendon, Mary Ann, 111 Glorious Revolution (English), 17–18 god/God, view of, 22–3 Goering, Hermann, 4, 6 good vs. evil, 30, 32–3 seeking/doing, 31 see also common good government, as social contract, 19–20 governments, threats posed by, 113–16 Greek agonal culture, 41 Grisez, Germain, 86 grosso modo, 77, 110, 122, 146, 153n19 Grotius, Hugo, 30 Gutmann, Amy, 111 Hardy, Barbara, 15 Hart, H. L. A., 11–13 Havel, Václav, 60, 132 Hawthorne, Nathaniel, 51–2 Hilberg, Raul, 64

172

Index

Himmler, Heinrich, 149n2 The History of Human Rights (Ishay), 124 Hittinger, John, 51–2 Hobbes, Thomas fear of death, 32 human nature, 93 Leviathan, 155n7 social contract theory, 102 Holocaust, 4, 64, 149n2 human attachment, 91 human goods, 30–1 human nature, 11–12, 94 human rights as aspirational, 130–1 individual rights and, 2 as natural law, viii, 2–3 negative human rights, 129–32 universal nature of, 129–30 see also international human rights human rights declaration, see Universal Declaration of Human Rights (United Nations) Hume, David humankind, party of, 95 Hume’s Guillotine, 83 is/ought problem, 84, 87, 98 virtues, 96–7 Hume’s Guillotine, 83 Hunt, Lynn, 119 Ignatieff, Michael human rights language/rhetoric, 109–10, 112–13, 147 moral law, necessity of, 141 nation-state worship, 115–16 The Iliad, 41 inclinationes naturales, 43, 46, 53, 70, 144 individualism, 59–60 International Criminal Court, 4

international human rights governments, threats posed by, 113–16 in history, 107–8 natural law’s relevance to, 127–9 negative human rights, 129–32 as politics and idolatry, 109–13 respecting otherness, 132–4 secular vs. religious versions, 116–17 intuition knowledge through, 50 self-justification and, 15 subjective experience of being, 68 see also moral intuition Inventing Human Rights (Hunt), 119 Ishay, Micheline, 107–8, 124 is/ought problem, 84, 87, 98 Jesus Christ, 24 judgement by inclination, see connaturality judgment, ethical, 99 justice, 66, 73, 133 justification, philosophical, 100 just law, 5 just war theory, 156n6 Kainz, Howard, 37 Kant, Immanuel, 74–5, 86 Kennan, George F., 133 King, Martin Luther, Jr., 5, 7, 147 Kitcher, Philip, 97–8 knowledge by inclination, 14, 70 knowledge through intuition, 50 Kolakowski, Leszek, 128 Korsgaard, Christine, 96, 98 Kraynak, Robert, 76 Kreeft, Peter, 30 Lauren, Paul, 123 The Law of Peoples (Bernardin), 112 Leff, Arthur Allen, 119–20

Index Letter from Birmingham Jail (King), 5 Levi, Primo, 109 Leviathan (Hobbes), 155n7 Levinas, Emmanuel, 57 liberalism, 60, 102 liberty, concept of, 129 Locke, John limits/obstacles to natural law, viii, 146–7 natural law as duty, 132 natural rights and natural law, 123–7 social contract theory, 19–20 state of nature, ix looking (paying attention), 143–6 love l’amour fou (“mad love”), 54–8 creativity and, 76 as realism, 29 Luther, Martin, 61 MacIntyre, Alasdair, 9, 12, 14, 41–2 Magna Charta, 17, 18 maieutic process, 1, 149n1 Making Sense of Human Rights (Nickel), 123 Man and the State (Maritain), 54, 68, 69–70 manifesto rights, see aspirational rights Maritain, Jacques absurdity, 63–5 after-knowledge, 53–4, 68 common law natural law, 77–81, 104, 147 common residue, 110–11 community, 46 connaturality, 13, 16, 70 connatural knowledge, 122 evil, confrontation with, 141 freedom and rights, 74–6 knowledge by inclination, 14, 43 on love, 54–9, 97

173

personalism, 59–63 poetic attitude, 51–4 state, man and the, 69–74 Thomist affiliation, 49–51 Maritain, Raïssa, 49, 63, 152n1 meaninglessness, destruction and, 144 see also Rausch (intoxication of destruction) megalopsychos, 41–2 metanarratives, 85–6 metaphysics, Aristotelian, 39–40 Midgley, Mary, 103 misericordia (pity), 41 modes of responsibility, 86 moral decisionism, 121 moral intuition as connaturality, 37, 100 narrative and, 19 self-justification and, 15 as undeveloped capability, 13–14 see also connaturality; inclinationes naturales; intuition The Moral Sense (Wilson), 88 moral sense theory, 84 moral sensibility, narrative and, 101 moral universals, 88–9 Mounier, Emmanuel, 63, 66 murder, 4, 33–4 narrative about intuition, 16 dialectic of, 144 natural law and, 44–7 sharing stories, 97–100 narrative theory, vii Natural History of Monogamy, Adultery, and Divorce (Fisher), 102 naturalistic fallacy, 12 natural law as absolute, viii belief in God and, 23

174 natural law (Continued) biological nature and, 93 vs. civic law, 2 cultural/institutional barriers, 105 definition/proof of, 1 as duty, 132 Greek heritage, 140 human nature in, 94 human rights as, 2–3 interpretation of, vii narrative and, 44–7, 98–9 as “reason reflecting on nature,” 13, 135 violation of, 34, 141–2 as “written on the heart,” vii, viii, 13, 135–6, 138 see also evil; new natural law; stories; Thomistic natural law natural law positivism, 10–13 natural necessity, 12 natural reality, 24 nature, defined, 13 Nazi Germany, 4, 7, 12, 71 necessity, see natural necessity negative human rights, 129–32 negative liberty, 129, 157n10 new natural law, viii, 83–7, 100–5 Nickel, James, 123 Nicomachean Ethics (Aristotle), 43 Niebuhr, Reinhold, viii, 44, 132–3 Nielsen, Kai, 39, 53 Nietzsche, Friedrich, 117 Nuremberg Trials, 4, 6, 149n2 Nussbaum, Martha, 28, 39 On the Republic (Cicero), 21–2 The Origin of Species (Darwin), 92 The Origins of Totalitarianism (Arendt), 116, 144–5 Orwell, George, 143 otherness, respecting, 132–4

Index “ought” statements, see is/ought problem overlapping consensus, 111–12, 122, 126 pain, 136 “party of humankind,” 95–6, 104 Perry, Michael J., 116–17, 119–21, 123 personalism, 59–63, 72 persuasion, 99 Peter, Richard, 93 philosophical justification, 100 pity, 41 pluralism, 63, 80 poetry/poetic experience, 51–4 Pogge, Thomas, 108, 113–16 Political Liberalism (Rawls), 111 Popper, Karl, 121 positive liberty, 129 positivistic natural law, 10–13 practical syllogism, 33–4, 36–7 praise, desire for, 97 prejudices, 19, 80, 125–6 prelinguistic consciousness, 135, 137, 138 Quran, 112 Rausch (intoxication of destruction), 63, 141, 144 Rawls, John, 111–12, 122, 126 realism and reality key doctrinal elements, 25 love and, 29 religious signs/symbols and, 24–5 see also Thomistic realism reason duty, love and pity, 131–2 faith and, 61, 121 good and evil, 31 morality and, 89–90 in moral knowledge, 36–7 narrative and, 44–5 natural law and, 125–7, 148

Index nature and, 13, 22 perversion of, 34 see also realism and reality The Reasonableness of Christianity (Locke), 125, 127 Reflections on the Revolution in France (Burke), 145 relativism, 6–8 religion founding fathers and, 74 humanity’s place in universe, 117, 122 as narrative, 118–19 state sponsorship of, 73 religious stories, 122 representative thinking, 145 responsibility, modes of, 86 Rieff, David, 136–7 rights, see human rights Rorty, Richard, 45, 118–19, 121–2, 136–8 Rousseau, Jean-Jacques, 62 sacred, human life as, 120 Saint Thomas Aquinas classical realism and, 25 imprisonment story, 23–4, 150n1 influence on natural law, 21 pluralistic democratic politics and, 74 theological point of view, 24–5 unjust law, 5 see also connaturality; Thomistic natural law; Thomistic realism Sartre, Jean-Paul, 142 Satan, 64 Satyagraha (power of truth), 71 Second Treatise of Government (Locke), 123, 125 Second World War, 4 security, 32 segregation, 5, 34, 35, 71, 147–8 Serbian atrocities, 136–7 sexual harassment, 99–100

175

shared values, 9 Sharia, 112, 155–6n3 The Situation of Poetry (Maritain), 52–3 slavery, 147–8 Smith, Adam, 96 sociability/social consciousness, 37, 38–9 social contract, 19–20 social contract theory, 102 social experience, 70–1 Socrates, 58, 146 Socratic method, 1 Song of Songs (Solomon), 56 Sophocles, 2 sovereignty, 69 speculative knowledge of first principles, 31 state, man and the, 69–74 state sovereignty, 69 stories sharing/telling of, 97–100 stunted narratives, 100–5 Strauss, Leo, 38 Summa against the Gentiles (Aquinas), 24 Sunna, 112 superior law principle, 17 Suto, Taki, 36–7, 38, 68 syllogism, see practical syllogism sympathies, sharing stories and, 97–100 synderesis, 33, 34, 38 Talmud, 117 telos (ultimate aim/end), 26–7, 29 theological point of view, 24–5 theory of mind, 154n3 Theory of Moral Sentiments (Smith), 96 Thomistic natural law evil, view of, 34, 139 inclinationes naturales, 43, 46, 53, 70

176 Thomistic natural law (Continued) misericordia, 41 as obsolete metaphysics, 39–40 participation in Eternal Law, 30 practical/speculative intellect comparison, 31 preservation of life, 32 synderesis, 33, 34, 38 see also connaturality Thomistic realism abstract universal/principles, 27 Aristotelian abstraction and, 25–6 formal cause and, 28–9 love and, 29 see also connaturality; realism and reality Three Reformers: Luther, Descartes, Rousseau (Maritain), 61, 67, 144 Tinder, Glenn, 117–18 Tocqueville, Alexis de, 69–70 Todestrieb (death drive), 58 torture, 136 totalitarianism, 18–19, 144–5 trope, 155n8 truth artists and, 52 as common residue, 111 conceptual, 33 of natural law, 35

Index power of, 71 as relative, 6 truth and reconciliation commissions, 66 Universal Declaration of Human Rights (United Nations) articles of, 3–4, 127 natural rights, 123 overlapping consensus, 122 purpose of, 115 rights guaranteed by, 114 social rights, 129–30 universal agreement, 76–8 universalism, 86 universal values, 88–9 l’univers concentrationnaire, 71, 138 unjust law, 5 values, see shared values Veatch, Henry, 86 violence, necessity of, 71–2 virtues, list of, 96–7 Wannsee Conference, 149n2 war, see Second World War Weber, Max, 63 will, weakness of, 140 Wilson, James Q., 6–7, 8, 88 Wittgenstein, Ludwig, 53, 99 “written on the heart” meaning of, 13 natural law as, vii, viii, 135–6, 138