DIVINE NATURAL LAW THEORY

Copyright 2013 Nigel Lo1 International Magis Society Publications

INTRODUCTION It is vitally important for any champion of natural law theory to trace and understand its origins. Natural law is a system of law that is purportedly determined by nature, and thus universal.2 Classically, natural law refers to the use of reason to analyze human natureboth social and personaland deduce binding rules of moral behavior from it. In legal theory, on the other hand, the interpretation of positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Some scholars use natural law synonymously with natural justice or natural right (Latin ius naturale), while others distinguish between natural law and natural right. This essay discusses 3 different areas relating to the concept of morality and argues that this universal approach to law characteristically determined by human nature, must exist with the presence of a God traced to its origins. This essay also discusses the impact of Christianity and how it has transformed natural law and the world. 1.0 CHRISTIAN NATURAL LAW THEORY Some early Church Fathers, especially those in the West, sought to incorporate natural law into Christianity. The most notable among these was Augustine of Hippo, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ. In the Thirteenth Century, Roman Emperor Gratian equated the natural law with divine law. A century later, St. Thomas Aquinas in his Summa Theologiae I-II qq. 90-106, restored Natural Law to its independent state, asserting natural law as the

Nigel Lo is the Founding President of the International Magis Society. He is an Associate Director at Red Earth Human Rights Research Department and the Non-Executive Director of Nexus Blackstone Leadership Centre. He was the first Malaysian to be awarded the Long Tan Australian Defence Force Leadership Award by the Australian Department of Defence for his advocacy in social justice and leadership development.
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Leo Strauss, "Natural Law". International Encyclopedia of the Social Sciences. (Macmillan, 1968).

rational creature's participation in the eternal law.3 Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. Those who see biblical support for the doctrine of natural law often point to Paul's Epistle to the Romans: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shrew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another.4 The intellectual historian A.J. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no reason to doubt the correctness of their interpretation."5 Humans are capable of discerning the difference between good and evil because they have a conscience.6 There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.7. To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided."8 St. Thomas wrote: There belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But as to the other, i.e.,
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Thomas Aquinas, Summa Theologica, I-II, Q.90-106. The Holy Bible, Romans( 2:14-15). 5 AJ Carlyle. A History of Medieval Political Theory in the West ( New York: G.P. Putnam's Sons, 1903) p. 83 6 Ibid. 7 International Theological Commission, The Search for Universal Ethics: A New Look at the Natural Law, n.46. 8 Thomas Aquinas, Summa Theologica, I-II, Q.90.

the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states were not esteemed sinful.9 2.0 THE MORALITY & ETHICS OF GOD Can we be good without God? This question gives us an arduous task of examining if objective moral properties like goodness in the world can exist without God. Certainly atheists such as John Mackie have every reason to ask what we can make of morality without recourse to God, and hence of what we can say about morality if, in the end, we dispense with religious belief10-- for given the absence of any religious faith by atheists, this is simply to ask how things stand with morality. But even theists have long asked this question.11 The most common answer to this question will be what this essay deals with in its thesis and that is the words of Ivan Karamazov: without God, everything is permitted.12 Kamarazovs conclusion was certainly the view of the post-World War 2 French existentialism, where God gets frequent mention in a kind of post mortem: What do we do now that God is dead? Hence, the brilliantly crafted response of Kai Nielsen who states the connection between God and good: If there is no Godthe classical natural law theory is absurd13 Thomas Aquinas made known his work that all laws essentially require a law giver. On Aquinas view, one of the essential properties a thing must possess to be a law is that it be promulgated by one who has the care of the community at heart.14 Most theistic natural law theorists hold the argument and belief that God is necessarily good. Gods existence is itself good and what God does cannot but be good.15 If atheists grant the permissibility of using this notion of God in a moral argument, it can be stated that no questions have been begged against them. This is so because it has not been conceded yet that there is such an omnipresent being, or that there is even a possibility of such being in their mindset. Hence it
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Ibid. John L Mackie, Ethics: Inventing Right and Wrong (London, Penguin, 1977), p. 48. 11 John Finnis, Natural Law and Natural Rights (Oxford, OUP, 1980), p.43. 12 Dostoevsky, The Brothers Karamazov (New York, Random, 1933) 13 Kai Nielsen, The Myth of Natural Law, in S. Hook, ed., Law and Philosophy (New York, N.Y.U. Press, 1958). p.129. 14 Thomas Aquinas, Summa Theologica, I-II, Q.90. 15 Ibid.
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is impossible to not allow the provisional admission that of an ethical conception of God at the outset of a theistic moral argument.16 Adopting a richer notion of Divinity has the advantage to find the nexus between the moral argument with better scrutiny with the extant religious traditions it is designed to have bearing on, and it also underscores why classical theists have been reluctant to view God as simply the bigger picture or the bigger person. Here we adopt a passibilist understanding of the Divine, according to which one may properly speak of Gods sorrow over ill and delight in the good17. If there is such a being, affectively concerned about the cosmos He has created, what effect does this have upon the moral enterprise? It can be said that this enlarges the scope of ethics and intensifying the values at stake. 3.0 CHRISTIANITYS IMPACT ON NATURAL LAW & WESTERN CONSTITUTIONALISM Natural law is not a Christian invention although it appears to be justified in the New Testament. For instance, Matthew 22:21 tell of when Christ was questioned by disciples of the Pharisees as to whether or not it was lawful to pay taxes to Caesar. To this, Christ responded: Render unto Caesar the things that are Caesars, and to God the things that are Gods. There, Christ seemed to draw a distinction between the laws of Caesar (temporal laws) and the laws of God (natural laws). Should the two be in contention, the laws of God must prevail.18 It can also be seen that Christian jurisprudence played an important role in the founding of the United States. The view adopted by the American Founding Fathers is that people cannot know the natural moral order (and as such their own individual rights) from their own reasoning, unaided by Gods revelation. There are, of course, those who resist the relationship of law to a supernatural Creator because they fear it might lead to intolerance or even theocracy. They have got this entirely wrong. After all, if we are endowed by their Creator with certain unalienable rights, then we are also entitled to the legal protection of our

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Charles Taliaferro, Gods Natural Laws in R.P.George, Natural Law, Liberalism and Morality (Oxford, OUP, 2002) 17 The Passability of God, Religious Studies 25, 1989, pp.217-24. 18 Francis A Shaeffer, A Christian Manifesto (2005), 89-102

basic rights no matter our own personal convictions or whether we have allegiance to any religion at all.19 CONCLUSION The idea of natural law can be traced to the classical philosophy of the ancient Greeks and Romans, through several Christian medieval writers, and down to modern times. Christian Theologian-philosophers, such as St Augustine and St Thomas have long advocated that natural law cannot come into being without the existence of a superior being in which they refer to the Christian God in particular. The idea of a law giving God cannot be but good. Gods ethics have been put into test in this discussion and it should be acknowledged that God is Himself all the values and goodness that human behaviour has been able to exemplify. Values such as love, sacrifice, forgiveness and sorrow over dark times. To ignore this fact results in a diminished understanding of the natural law and the principles that underpin it in Western societies.

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Augusto Zimmermann, Law, Faith and Liberty: Christian Jurisprudence and The Western Legal Tradition, (Dialogue Juridica 2010) p.36

REFERENCES Leo Strauss, "Natural Law". International Encyclopedia of the Social Sciences. (Macmillan, 1968). Thomas Aquinas, Summa Theologica, I-II, Q.90-106. The Holy Bible, Romans( 2:14-15). AJ Carlyle. A History of Medieval Political Theory in the West ( New York: G.P. Putnam's Sons, 1903) p. 83 International Theological Commission, The Search for Universal Ethics: A New Look at the Natural Law, n.46. John L Mackie, Ethics: Inventing Right and Wrong (London, Penguin, 1977), p. 48. John Finnis, Natural Law and Natural Rights (Oxford, OUP, 1980), p.43. Dostoevsky, The Brothers Karamazov (New York, Random, 1933) Kai Nielsen, The Myth of Natural Law, in S. Hook, ed., Law and Philosophy (New York, N.Y.U. Press, 1958). p.129. Charles Taliaferro, Gods Natural Laws in R.P.George, Natural Law, Liberalism and Morality (Oxford, OUP, 2002). The Passability of God, Religious Studies 25, 1989, pp.217-24. Francis A Shaeffer, A Christian Manifesto (2005), 89-102 Augusto Zimmermann, Law, Faith and Liberty: Christian Jurisprudence and The Western Legal Tradition, (Dialogue Juridica 2010) p.36