Julius Kovesi
- Natural law
A morality which is based on Nature—in some sense of “nature”—does not necessarily need to be described by the term “Natural Law Morality”. The use of this term creates special problems of its own and we should investigate these before we turn our attention to the claim that morality should be based on Nature in some sense of “nature”.
There are of course important historical reasons for the use of this term but our interest now is not to trace its complex and intricate history but to investigate some of the logical implications of its use. Historically two of the main influences that were instrumental for the currency of this term were the influence of the Old Testament and that of the Stoic philosophers. The Old Testament created the tradition that the rules regulating human conduct are laws given by a Lawgiver and this tradition made Christian theologians to tend to assimilate moral judgments to the pattern of laws. The behaviour of Jews was under the law of God. But the rest of mankind also behaved. It did not need a St. Paul to observe this or even to express it. But it was St. Paul who expressed this in comparison to the Jews’ behaviour (Romans 2,14), and so he expressed it in the terminology and conceptual framework available for him, in terms of law. The gentiles also seem to have a law, and if it is not given by God, it is given by nature; or if given by God then it is given through nature.
The Stoics and other humanist philosophers and jurists of the Roman empire were also searching for something else than what regulated the behaviour of their own people, they were searching for something other than the positive Roman law that they could appeal to in deciding what is right and wrong. In fact they were searching for moral standards but in their legal environment they thought that that something which is other than the Roman law is another law. This influence reinforced the Christian theologian’s tendency to think of morals in terms of laws as it probably influenced St. Paul himself already.
From the point of view of these two traditions the term “natural” does not necessarily imply that morality should be based on nature. In the one case a law is claimed to be natural as against revealed Divine Law and in the other case a law is claimed to be natural as against positive enacted law. But what the contents of these laws are is not given by the claim of them being natural, that is, it does not follow yet that a law which is not revealed should have for its content a morality based on nature in some sense or other, or that a law which is not enacted by legislators should have this as its content.
What St. Paul observed was not that the gentiles followed a specific moral code according to which following the patterns or intentions of nature was good and deviating from them was evil or fulfilling nature’s potentialities was good and frustrating them evil. What he observed was that the gentiles, without divine laws, possessed moral standards, and to distinguish these from divine laws he called them natural laws. Similarly, in the case of stoic philosophers and roman jurists, the function of the term “natural” was to qualify what sort of law they were referring to and not to specify a morality which took Nature as its standard. The point is that a morality which is based on nature is but one type of morality and what St. Paul referred to was morality as such as against revealed laws, and what the stoics referred to was again morality as such as against positive laws.
The distinction between divine and positive laws on the one hand and morality on the other is the starting point of natural law theories not only historically but also logically. Natural law theories derive their logical force from the fact that positive law cannot (and this is a logical “cannot”) be the final court of appeal in matters of morals. That we cannot identify what is morally right or good with whatever is enacted in positive law can be seen from the simple but all important fact that we can always ask about a piece of positive law whether it is good or right. These questions would not be significant if the two were identical, that is, if what is enacted by positive law was identical with what is right or good. Thus, for instance, if we identified “right” or “good” with “whatever is enacted by law” then the question “is this law right (or good)?” would amount simply to asking “is this enacted by law?”. Sometimes the question would only amount to asking “is this piece of legislation a piece of legislation?”. The first is a factual question, the second is a tautology. However, when we ask whether a piece of law is right or good we are not asking a factual question nor a tautology, we are trying to evaluate it. Moreover, if we want to avoid a vicious circle, we are trying to evaluate it by reference to a standard different from that of positive law. But is this a different standard or a different type of standard? This is the enigma of natural law theories. Natural law theories came into existence as the assertion of this standard to which we can appeal over and above positive laws. But instead of realising that the distinction thus created is between law and morality, it is assumed that the distinction is made between our existing laws and some ideal law. The old model is retained: what we appeal to is a law, we make our evaluation by reference to a law, though it is an ideal law.
But if natural law were but another set of laws, we could again ask about them whether they are morally right or good. Not only could, but we should ask this if living according to them we want to live a morally good life. These questions however would be ruled out—quite rightly—by the exponents of natural law theories. They would be ruled out because ex hypothesi natural law is the moral standard and whatever is not right or good cannot be part of natural law. But if this is so then the important consequence follows: we cannot determine what is part of natural law before we made our moral decision as to what is right and wrong; that is, we do not find out what is right or wrong by reference to a set of laws, but we determine what these “set of laws” are by means of our sound moral standards or judgments.
We shall meet with this very same logical point again in the next chapter when we shall consider different senses of nature and ask which sense of “nature” can serve as a moral standard. We shall find that only if we first determine what our “true” nature should be according to our moral ideal can we go on to assert that fulfilling that nature is our moral goal. There is a circularity here of course but we are not concerned with that at present. Our concern now is the logical point that we do not determine what is morally right by reference to our nature but decide what our nature should be by reference to our moral standards and only then is the claim that we should fulfil our nature a moral claim. There is, as we shall see, an alternative pattern of argument which however does not eliminate this primacy of the moral point of view. One could make the injunction that we should follow nature, meaning by nature not a moral ideal but nature as we find it empirically, and still retain the moral character of the injunction. But this injunction can retain its moral character only if on independent moral grounds we first establish that our obligation is to follow nature as we find it empirically. This injunction we do not derive from nature as we find it empirically.
To return to the problem of laws, so far I have been trying to say that positive laws cannot (and this is a logical “cannot”) be the final moral court of appeal and that this moral point of view from which we can always criticise any existing standards cannot (again logically cannot) be construed on the model of laws that we can just refer to. With the help of this model we can only answer the question “what is legal?”.
In the history of ideas there are many other examples of a new discovery being spoilt by being expressed within the framework of the old model when the new discovery is in fact a new framework or model. There are many such examples in the field of science but nearer to our present subject the best example is the case of Rousseau. He was trying to criticise the view that the will of an individual such as a king, or the will of a few or for that matter the will of the indiscriminate majority constitutes not only what is positively enacted but also what is right and ought to be enacted. But instead of realising that the question of what is morally right or what ought to be the case is not a matter of wills discoverable in terms of political science, he retained the notion that the question should be asked and answered in terms of wills. He asked in effect: “If what is morally right is not the will of this or that person or group of people then whose will is it?”. Instead of protesting that this is not the type of question that will yield the desired answer he asked precisely this and in order to answer it he invented—very much like the ideal law invented by Natural Law theorists—the ideal will, the General Will. And his theory suffers from the same enigma: we can decide what really constitutes the General Will only on the basis of our sound moral judgments and so we have the same circularity that we observed earlier.
In fact this “Natural Law” has all the markings of our moral judgments and none of the features of laws.
2. The Natural Law, or the Destruction of Moral Philosophy and Reason
It is an impossible task to write on, or just to speak of “the Natural Law”. One could make profitable studies on, say, the Stoic conception of Natural Law, on the transformation of this concept during the 13th century under the influence of Aristotle, one can investigate the various different senses in which the early Church Fathers used this expression, what versions of Natural Law influenced the codifiers of canon law at various stages of its history, or how it was used in the 18th century.
A completely different type of enquiry would be to determine the various roles it played in the field of jurisprudence; or again in the field of political thought. In the field of political practice one could investigate how at times the idea of a Natural Law served as a conservative, if not repressive force, at other times as a progressive if not revolutionary force. In this duality it can be compared to the idea that “all power comes from God”. Sometimes this justified the acts of rulers, for they had power and so it must come from God; at other times this idea was used to put down rulers, for their position did not come from God and so they did not have power.
Similar moves were made in political practice with the idea of Natural Law. Up to the 14th century the Augustinian theory of the state dominated political theory and practice. According to this theory, the State is the result of our Fall. In our original condition we would not have needed a State, it is not part of the order of nature. But in our fallen condition we need a coercive power, the function of which is to enforce the divine law. By the 14th century the Aristotelian revolution of the previous century had its effects on political thought: Man is by nature a political animal, so the State is a natural institution, it is part of the order of nature. Consequently it has its own end and principles and cannot be used as a means to another end. Not only is Marsilius of Padua a bad boy ever since in standard scholastic histories, but Dante’s De Monarchia was on the Index until the beginning of this century.
There is a similar double use of Natural Law in the various social contract theories. If the original state of nature is wicked and brutish and antisocial, then by nature there is a demand for a civic state and for cooperation, otherwise we cannot survive. If the original state of nature is such that by nature we cooperate and are sociable, then of course again by nature we must live in civic society and cooperate.
We are witnessing at present a similar struggle between progressive and conservative ideas, both based on the idea of Natural Law. According to the conservatives we have long ago discovered once and for all what human nature is, and this nature is clearly and well known; others claim that the findings of various sciences, including psychology, have something new to say about our nature and since we must base our moral laws on our nature we must consider these findings. Not that human nature is changing; it is eternal and unchanging alright, only we discover more and more about this eternal unchanging nature. Or the same conflict may present itself today between those who think that in order to determine a moral law only one part of our physiology should be considered, the part which is common to all animals and has a biological function, while others claim that the nature of our whole physiology is relevant for drawing conclusions about the moral law. As against both these there are some still more daring spirits who are so revolutionary that they would even talk about the nature of man and dare to find something relevant there for morals over and above the findings of biology.
But to illustrate further how the same idea can once be revolutionary and at other times conservative, we must note that those who think that our biological nature is the relevant sense of “nature” for drawing moral conclusions have once been the most revolutionary thinkers. In the Augustinian tradition not only is the civic state the result of our Fall and not part of nature, but the manner in which we propagate our species is the result of the Fall. St. Augustine nevertheless justifies the use of this evil in a typical utilitarian fashion—it is justified for the sake of the survival of the human race. According to Gregory of Nyssa, without the Fall we would have multiplied in a “purely spiritual way”, like angels. The division into sexes is not the result of the Fall however, but rather of the prevision of the Fall by the omniscience of God. In this tradition empirical observation or human reason cannot discover our nature which is our nature before the Fall.
Natural Law is what is contained in Revelation, as the very first sentence of Gratian’s Decretum claims. On this basis the father of systematic Canon law, Gratian can draw the following conclusions: “Woman was not made in God’s image … so we can understand the desire of the law that women be subject to men, and wives almost the servants of their husbands. It is clear that woman is under man’s domination and has no authority, nor can she teach, give evidence, make a contract nor be judge.” In this he only echoed tradition. Tertullian addressing women of all times cried out: “It was you who thus disfigured the image of God which is man.” Urban VIII rejected the idea of teaching nuns on the passage of St. Paul, “docere autem mulieri non permitto”. This attitude was later reinforced by the rediscovery of the interesting biological views of Aristotle, according to which the human species is reproduced only through the male, the female providing only a place for the embryo to grow. Consequently by nature all children should be males, since the species should reproduce itself true to its own nature.
And this is how Aquinas explains why some children are girls after all: “In her particular nature woman is something defective and accidental … If a girl child is born, it is due to weakness of the generative principle, or imperfection in the pre-existing matter, or to a change produced by external causes, for example by humid winds from the south, as Aristotle says.”
We might want to dismiss passages like this as belonging to the curiosities of the history of biology, and not forming part of the eternal truth deposited in the Summa. But we can make this move only if we deny that Natural Law is based on our knowledge of human nature and claim that it can be stated somehow independently of such knowledge.
However curious these speculations about our nature are, they represented in the 13th century a revolutionary move compared to the purely a priori speculations that dominated the scene before. Before Aquinas, the theory of Natural Law that dominated Christian thinking (apart from the Stoic and Greek undercurrents) had no reference to man as he is. The ruling idea was the grim hypothesis of “pure nature”, our nature before the fall. There is neither biblical nor rational foundation for the hypothesis that our human nature was different before the fall. Nevertheless this imaginary state was taken as the standard of what our real nature is. As I shall say at the end of this paper, we are still far from free from the disastrous consequences of this hypothesis.
At present I just wanted to indicate some of the variations of the concept of Natural Law, its adventures through the centuries, and especially the ways in which it can play at one time a traditionalist role, at another time a progressive role. (And if we accept Leslie Dewart’s analysis of Pacem in Terris we have to agree with him that in that Encyclical we find the most radical departure from the traditional conception of Natural Law, opening up new avenues for study and research.)
I made only some random references to the history of this concept, mainly to give an impression rather than anything else. There is no place here for a systematic study of the various varieties of Natural Law. For the Platonic foundation of Natural Law we would have to study his metaphysics, where the real nature of anything can be understood only from the point of view of its end or ideal standard. Here we do not start with the study of our nature and end with a moral conclusion. The process of thought is the other way round: without the standard we cannot begin to understand the real nature of anything; we start with how things ought to be and conclude with what the real nature of anything is. Aristotle, while retaining most of the metaphysical framework of Plato, gave an empirical slant to the method of finding out the “real nature” of things. His further and most valuable contribution to our problem is to be found in his Magna Moraliaand his Rhetoric where he contrasts positive law with natural justice (significantly he uses the term “natural justice” and not “natural law” further to distinguish what he is driving at from “laws”.) What he is driving at is really the difference between moral judgments and law-like statements and the fact that positive law cannot be the foundation of morality. But I want to mention only one small point in his theory to indicate how far some contemporary Natural Law theories travelled from him. According to Aristotle, by its very nature a law cannot deal with complex individual cases. It is here that natural justice comes into operation.
Now when we turn today to such avant-garde thinker as Fr. Rahner, we find that he feels himself to be committed as a theologian to a deductive system of ethics where we deduce lawlike principles in syllogistic fashion. He concludes that such principles cannot deal with complex individual cases. To solve the problem he says that we should have what he calls a “formal existentialist ethics” and as a revolutionary idea he suggests that in complex cases we have to make our own moral decisions. What for Aristotle was a case where natural justice should come into operation is for Rahner a problem to be solved by the revolutionary daring theory of existentialism.
I do not know whether this is amusing or sad. It is ironical. If I can sum up two thousand years of history in a few sentences I should say this. The value of talking about Natural Law is to claim that there is a court of appeal higher than positive law; positive law cannot be the standard as to what is right and wrong. What we appeal to is our moral judgments and principles. In one sense we could call this Natural Law, in contrast to artificial positive law. But this term should not mislead us so that we would construe moral judgments on the pattern of law. Nevertheless this is what has happened in the Natural Law tradition. So Rahner’s moral principles are now in the same logical status as Aristotle’s laws were, or in other words, Rahner’s Natural Law is in the same logical predicament as Aristotle’s positive law. This is why he cannot invoke the concept of Natural Law any more to solve the problem that the concept was originally introduced for.
A more extraordinary case in this connection is in the Australian Bishops’ letter on Natural Law. The Bishops, or whoever wrote the pamphlet, claim that it is difficult for us to make deductions from, or applications of, the secondary principles of Natural Law. There is therefore an absolute necessity for positive law to help us in cases like that, as if parliamentary decisions are more reliable moral guides than our moral judgments. This is not only a complete reversal of the traditional roles of positive law and Natural Law but also a very strange doctrine to say the least.
It was however from the Stoics that the Church took over most of the tenets of Natural Law; their version was a combination of jurisprudence, ethics and metaphysics. With the expansion of Roman rule to the known civilization international law was a live issue and a universal law applicable to all mankind became an ideal. The pantheistic metaphysics of the Stoics provided a rational foundation for such a universal law. In characteristically Greek fashion they called anything noble ‘divine’, and since their ideal law was something noble it was ‘divine’. This law governed the behaviour of human beings as well as the rest of nature. Ever since in Christian thinking we have an intermingling of the concepts of Divine Law, moral judgments and law of nature. True, we praise Aquinas for his masterly divisions of the various kinds of laws, but to make his division is already to assume that here we are dealing with various branches of the one family of law-like statements. How far this assumption has retarded Christian thinking in the field of moral philosophy can be appreciated only if we are familiar with the developments in the rest of moral philosophy.
We could continue to indicate the various theories that are incorporated as various strata in that conglomeration of theories called “Natural Law Theory”. And any student of the humanities and especially of philosophy finds out very soon that there are far more versions of Natural Law theory outside the Christian tradition than within it. Moreover they are usually more consistent and more cognizably natural law theories.
The history of the many varieties of Natural Law theories is therefore a fascinating and interesting study for anyone interested in the history of ideas. All this has very little relevance however to the understanding of the sort of arguments that many contemporary Catholics employ and call “Natural Law”. Apart from the field of sexual morality, nowhere do we find any reference to “how nature works” in order to “solve” moral problems. We find standard utilitarian arguments (the variety of utilitarian theories called “rule utilitarianism” as against “act utilitarianism”, that is when a rule but not an individual act is justified by reference to its utility). Thus we find arguments saying that unless such and such a rule of behaviour were universally obeyed then society would disintegrate. Then we find arguments of intuitionists that certain things are self evidently right or wrong. (Most of these are quite unhelpful analytic statements like “one has a right to property”. This is self-evident because we would not call anything “property” unless someone had a right to it. Or “laws ought to be obeyed”. Of course bad laws are excluded from this and only genuine laws ought to be obeyed. And the only way to find out which are the genuine laws is by finding out which laws ought to be obeyed.) Then we find Kantian arguments appealing to our rational nature and to the categorical imperative of practical reason. This is as far from Natural Law theories as anything could be, yet some claim that this is the real Natural Law theory. The confusion is due to the conveniently elusive nature of the word “nature”. It is our nature to be rational. But what follows from this? Not that I ought to be rational, because in that sense in which it is my nature to be a rational animal I cannot help being rational; it is one of my defining characteristics distinguishing me and every other stupid irrational human from brutes and vegetables. It is not my nature to be rational in the sense of rationally rational, that is being a good reasoner or a correct thinker. Of course I ought to think correctly, but not because by nature I am a rational animal. There are many other good reasons why I ought to think correctly. But a more important point is this: by following our reason we do not necessarily come to the conclusion that the only way of being rational is to discover certain patterns in nature and to conform to them and follow them. So “following nature” in the sense of being rational is not yet “following nature” in the sense of “nature” in which Natural Law theory says that we do, or should follow nature.
Then again we find arguments that claim that all our moral thinking is a deductive type of thinking. To subscribe to a Natural Law theory is not to subscribe to a view that we have to study and investigate how nature works and conform to nature’s intentions. There is a first principle, “Do good and avoid evil” and from this certain other principles follow. The origin of this deductive view goes back to Aristotle, but all that Aristotle invoked this first principle for was to explain how certain arguments conclude with an act and not with a proposition. It is a very bad misunderstanding of Aristotle to assume that the principle “do good and avoid evil” is a sort of first principle of a syllogism from which other principles follow. In fact nothing follows from this principle. Aristotle himself was the first moral philosopher to point out that arguments in ethics differ from deductive arguments.
There are no philosophical reasons why most of the arguments employed by seminary trained philosophers should be called “Natural Law” theories, yet most theologians and most seminary trained philosophers stick to the term “Natural Law” as if it were an article of faith. There are more psychological than philosophical reasons for this.
There is a feeling that there are only two sorts of objective statements, statements about observable matters of fact, and statements that state the laws that govern the universe. Unless our statements are about independently existing empirical facts or state laws that exist “out there” independent of human beings, we are expressing subjective attitudes. As we know this was the explicit view of logical positivists, though many people who would not call themselves such share this view as a vague feeling.
Moral philosophers have quite successfully met the challenge of logical positivists. It is not our concern here now to show how moral judgements are objective, even though they are not statements about laws existing “out there” in nature or in the universe. But anyone who is not familiar with these arguments, and at the same time accepts the logical positivists’ view as to what it is to make an objective statement, must either think that moral judgments are subjective, or that moral judgments are like statements stating the laws of nature. This is one reason why many people like to regard their moral theory a “Natural Law Theory”. Many seminary philosophers would be outraged to realise that they share one of the basic assumptions of logical positivists. But each time I request as much as a clarification or elucidation on the notion of Natural Law from a seminary trained philosopher the invariable reaction is not a clarification or elucidation but an attack on the dangers of subjectivism.
A second psychological reason for the tenacious sticking to the ‘natural law’ label is this. A moral philosopher, by being a moral philosopher, ex hypothesi deals with the problems and logic of the prescriptive and evaluative rules and standards that are applicable to any man as human beings. They do not have to give a special warning or indication that they are not dealing with problems applicable only to some people. But when a moral theologian enters this field of discourse he feels somehow a need to indicate that he is talking about problems that are applicable to any human being, and not only to Catholics. This is another reason why so many of them use the blank term “Natural Law” when what they talk about is moral philosophy. It does not mean however that moral philosophers, without knowing it, deal with Natural Law. Rather, it means that moral theologians, when they talk about Natural Law, talk about moral philosophy, about a large variety of different moral philosophies.
Like the previous one, my last comment is not on Natural Law theories but about some people who talk in terms of Natural Law theories. I remarked earlier that we are still not free from the hypothesis that our present nature is a corrupt one compared to a pre-fall ideal nature. As if what we had lost was not a supernatural gift but something natural, compared to which we are now something degenerate. The new version of this view is different from the old one. According to the old version, as I said, the standard is not our present nature but a hypothetical pre-fall nature. Today, we regard some aspects of our physiology as the standard of how things ought to be. The effect of original sin (insofar as our nature is concerned, apart from its supernatural effects) is restricted now by some people to one part of our nature, to our reasoning faculty. Previously we were quite sure in our reasonings about a pre-fall “nature”: today we are not confident in our reasoning faculty in interpreting our present nature.
The principles of Natural Law follow deductively in a strict order—but our reasoning faculty is unable to make these deductions. Nevertheless we have to accept certain conclusions as if they were clear deductions from self-evident principles. The principles of Natural Law are written in the heart of everyone—but due to “clouds” and “passions” we are unable to read them. Nevertheless we have to accept them as if they ***
3. Some Thoughts on Law and Morals
PARADOXICALLY THE FIRST ATTEMPTS TO DISTINGUISH BETWEEN LAW AND MORALITY ARE AT THE SAME TIME ONE OF THE SOURCES OF THEIR CONFUSION. I AM REFERRING TO THE VARIOUS NATURAL LAW THEORIES.
Theories of Natural Law derive their logical force from the fact that positive law cannot (logically cannot) be the final court of appeal in matters of morals. That we cannot identify what is morally right or good with whatever is enacted in positive law can be seen from the simple but all important fact that we can always ask about a piece of positive law whether it is good or right. These questions would not be significant if the two were identical. Thus, for instance, if we identified “right” or “good” with “whatever is enacted by law” then the question “is this law right (or good)?” would be reduced to the factual question “is this enacted by law?” Sometimes the question would only amount to a tautology “is this piece of legislation a piece of legislation?” However, when we ask whether a piece of law is right or good we are not asking a tautologous question, nor a factual question, we are trying to evaluate it. Moreover, if we want to avoid a vicious circle, we are trying to evaluate it by reference to a standard different from that of positive law. But is this a different standard or a different type of standard? This is the enigma of Natural Law theories. For Natural Law theories came into existence as the assertion of this standard to which we can appeal over and above positive law. The exponents of the Natural Law, however, instead of realising that the distinction they had made was between law and morality, thought they had discovered the distinction between an ideal law and our existing laws. Thus they retained the old model that what we appeal to is a law, that we make our evaluations by reference to a law, though it is an ideal law.
This “Natural Law” has all the markings of our moral judgments and none of those of our positive laws. Human beings make and create all sorts of things but some are more man-made than others. In comparison with positive laws which are obviously man-made, and sometimes even artificial, the moral standards we appeal to seem natural. Again, while positive laws are applicable to the territories over which the legislation has authority, the moral standards are universal. (To avoid a very popular confusion, the universality of our moral judgments does not mean that everyone everywhere accepts the same moral judgments but that when we make them we regard them as applicable to anyone. That is to say, counterexamples of different actual practices do not tell against the view that it is a distinguishing mark of a moral judgment—as against laws, customs or etiquette—that it is claimed to be applicable to anyone. The example of the four wives of Moslems is overworked. To illustrate the point one should think of moral objections to racial discrimination where contrary practices far from refuting our claim for universality rather give point to it.) Another contrast to positive law is this: When we want to find out “what the law says” then in the case of positive law we have to look up the statute books. In the case of “natural law” we have to “look into our hearts” or see what reason would say.
It is not only these contrary characteristics that make me think that what those who formulated the Natural Law theories really did was to discover moral evaluation in contrast to living by a code of positive laws. My formal logical proof is this. If Natural Law is only yet another set of laws, then we can again ask about them whether they are morally right or good. Not only could we ask these questions but we should ask them if, in living according to these laws, we claim to live a moral life. But these questions would be ruled out by the exponents of these theories and they would be ruled out not only because the Natural Law is morally perfect ex hypothesi but also because it is so by definition. It is so by definition in the sense that anything not morally right would not be part of the Natural Law. But if this is so then the important consequence follows: we cannot decide what is part of Natural Law before we have made our moral decision as to what is right or wrong; that is, we do not find out what is morally right or wrong by reference to a set of laws, but we determine what those “sets of laws” are by means of our sound moral judgments.
In this article I am not trying to give an answer to the question: “What is the foundation of our moral judgments?” So far I have been trying to say that positive laws cannot (and this is a logical “cannot”) be the final moral court of appeal, and that this moral point of view from which we can always criticise any existing standards cannot (again logically cannot) be construed on the model of laws that we can just refer to. With the help of this model we can only answer the question “what is legal?”
In the history of ideas there are many other examples of a new discovery being spoilt by being expressed within the framework of the old model when the new discovery is in fact a new framework or model. There are many such examples in the field of science but nearer to our present subject, the best example is the case of Rousseau. He was trying to criticise the view that the will of an individual such as a king, or the will of a few or for that matter the will of the indiscriminate majority constitutes not only what is positively enacted but also what is right and ought to be enacted. But instead of realising that the question of what is morally right or what ought to be the case is not a matter of wills discoverable in terms of political science, he retained the notion that the question should be asked and answered in terms of wills. ‘If what is morally right is not the will of this or that person or group of people then whose will is it?’ Instead of protesting that this is not the type of question that will yield the desired answer he asked precisely this and in order to answer it he invented—very much like the ideal law invented by Natural Law theorists—the ideal will, the General Will. And his theory suffers from the same enigma: we can decide what really constitutes the General Will only on the basis of our sound moral judgments, and so we have the same circularity that we observed earlier.
Natural Law theories had repercussions both in the field of morals and in the field of law or jurisprudence. In the field of morals Natural Law theories amount to a specific type of moral theory and it is not often realised that this is a further new step from what we have traversed so far. What I mean is this: The features of Natural Law that we have observed so far are features of any theories that claim to be moral theories. (That is, among other things, a moral judgment is not an artificial enactment applicable to a limited territory and discoverable by looking up statute books but it claims to be applicable to anyone, it is what naturally ought to be and the appeal for the claim is made to our conscience or to our reason.) But Natural Law theories proper go on to claim that what is applicable to anyone and what naturally ought to be and what is discoverable by the conscience or reason of everyone is a specific type of morality. With this again I am not concerned here except to point out that the term “Natural Law”, because it refers both to the general claims of morality as against positive laws and to a specific type of morality, obscures the fact that there is a new step to be made from the one to the other.
It is the repercussions on jurisprudence that I would like to remark briefly. That Natural Law theorists thought they had discovered a set of ideal laws and not morality is not only a matter of terminology. Its effects on jurisprudence is that it makes us tend to think that positive law is but a poor imitation of that ideal law. Of course positive laws need constant improvements just as even our actual moral judgments also need improvements. But positive laws fall short of the ideal positive laws and our moral judgments fall short of better moral judgments: each needs improvement by reference to its own point of view and its own type of standard.
To say that positive laws fall short of the ideal law in the Natural Law sense of “ideal law” is to say that positive laws fall short of our moral judgments and this amounts to the claim that our laws should be the enforcement of our morality. This is why I said at the beginning that the first attempts to distinguish between law and morality are at the same time one of the sources of their confusion. Our laws, according to these theories, are not perfect, not because they are not the perfect positive laws but because they are not the perfect reflection of our moral judgments. They are the results of our necessary compromise with practical reality. For the sake of public peace, for the sake of a compromise with the hardness of people’s hearts who cannot live according to the ideal laws, or because of our inability to see clearly the ideal natural laws, we make but poor compromising positive laws. Also, and this is a more sensible suggestion, since the subject matter of law is what is public and observable, not every aspect of our moral life can be incorporated in law.
I find this not only theoretically mistaken but morally objectionable. For one thing, this view would allow that we can compromise our moral convictions for expedience; for another, we can be suspicious of the upholders of these views that if they were in the majority they would enforce their own moral convictions on others and at the moment they are only bowing to expedience. These are not moral but rather immoral reasons for having a discrepancy between our moral convictions and law.
There is, however, a moral reason, or rather there should be a moral reason, for not turning our moral convictions into laws. From among the many problems I raised I would like to concentrate only on this limited problem.
It is part of the essential characteristics of laws that they are backed by force and coercion. To make our moral problem clear I would like to ask not “what should we enact as law?”, but “what should we enforce by threat of punishment and explicit coercion on others?” When the question is put this way our problem is not how far law should be the reflection of our moral judgments, but how far are we justified, morally justified, in enforcing on others certain ways of behaviour, or how far are we morally justified in regulating their behaviour. Forcing other people to behave in certain ways is such a serious matter that we need moral justification for it and we need this not only in matters where what we want to enforce is a moral matter in its own right but even in matters that would be morally neutral otherwise. To those who fear that by taking away Natural Law as the standard to which positive law should approximate opens the gates for immoral legislation I can only say that there is certainly no moral justification for forcing people to be immoral, that is, to make laws that would run against our moral convictions. But at the same time we are not always justified in forcing people to be moral either. This does not amount to a compromise with our moral convictions, however, as it did on the basis of some Natural Law theories. I find it quite compatible to be convinced, quite firmly convinced, by the moral rightness of certain acts and at the same time not to want to enforce it on others, or not to be morally justified in enforcing it on others. Whether I am morally justified in enforcing a view or some behaviour on others is a further moral problem over and above the question whether that view or behaviour is morally right or not. There is a strong psychological objection to this view because we tend to regard the willingness to enforce a view on others as the measure of our conviction of the rightness of that view. If we are not willing to enforce something we are likely to be open to the suspicion that perhaps we are not quite convinced about the rightness of that matter. Willingness to enforce something on others is not the measure of our moral convictions though it could be the measure of our impatience, if not of our impertinence.
Our state is not secular but neutral. It is neutral not because neutrality is an ideal, let alone a moral ideal. On the contrary it is neutral and should be neutral because it is full of people not with neutral but with strong moral convictions as to what is right and wrong and how we ought to live. To say that our state is secular, as against being neutral is to sin against the view I have been advocating. This view would regard it as the business of state-machinery to take sides in moral matters and enforce one particular outlook on the world. Those who claim that the majority of citizens are not Christians have an even more objectionable view on these matters. To object to them is not to say that they are mistaken in thinking what the conviction of the majority of the people is, but to say that this is quite irrelevant. Would these people subscribe to the view that if Christians were in the majority then our legislation should reflect their moral convictions? Even if we had only two and a half atheists amongst us we should respect them and not force our views on them, and even if they were in the majority they should not therefore regard the state as their own. Talks in terms of state-Church relationships can be misguided if they suggest that the Church is the Christians’ church and the state is the non-believers’ church.
During the Middle Ages, as a matter of empirical fact, it so happened that having one faith was not only a matter of religion but at the same time it was such an all important political binding force that without that society would have disintegrated. When this is so, as a matter of empirical fact, one can argue that the state can legislate for and enforce a religion. Why we cannot argue for this now is not because we have become atheists but because as another changeable empirical fact, today the common good (that is, without which society could not go on as it is) is not the binding force of one faith that held the feudal society together but our belief in that multicentred or pluralist society that I was arguing for. Those who argue today that our legislation and institutions should be explicitly secular or non-Christian are worse than the mediaeval legislators who made explicit legislation in favour of Christianity. They are worse, because as I said, in the Middle Ages there was a case for regarding certain religious matters as having political and social importance without which society would have disintegrated. But one cannot say that secularism or atheism is today in the same position, that without them society would disintegrate.