Lesson 7: Natural Law and the Roots of Authority
7.1 Law above Will
The danger with any political party or political movement is that the temptation to power leads one to identify the right with might; that is, the very legitimacy and authority of the law is attributed to the power of the law maker. Socrates encountered this opinion in Thrasymachus early in the Republic. Justice is identified simply with law; and law is attributed to the stronger party who makes such laws as will serve the interest of those in power. Socrates reasons that there must be something above power or force which gives a content to the notion of justice. There is such a thing as natural right. The notion of natural right in turn suggests that there is a higher law or a natural law by which the positive law of the city is to be measured and judged. Thomas Aquinas sets the most famous variation of this approach to a higher law. It is an approach later used by Martin Luther King, Jr. as in his letter from a Birmingham Jail.
7.2 Thomas on Natural Law
Thomas goes through a series of articles aimed at arriving at a more rigorous definition of law. The definition is as follows:
|Chart 7.1 Definition of Law|
"Law is an ordinance of reason for the common good, decreed by the authorities in charge of the community." (St. Thomas Aquinas, STh I-II, 90, 4)
Thomas then distinguishes various types of law. Natural law is the participation of a rational creature in the divine law.
|Chart 7.2 Natural Law Defined|
The natural law is a participation in the wisdom and goodness of God by the human person, formed in the image of the Creator. The natural law expresses the dignity of the person and forms the basis of human rights and fundamental duties.
The natural law is a key to understanding the foundation of political authority. Positive law ultimately derives its authority from the foundation of what is right by nature. Dorothy Sayers has constructed a useful chart for seeing the connections:
|Chart 7.3 Sayers on Types of Law|
Finally we must understand how the fundamental principles of moral law are derived and how they can be a touchstone for the legislator. If the purpose of the polis is that of human flourishing then the law maker must know what are the elements of human flourishing. Thomas identifies the fundamental goods of human flourishing from the various inclinations of the human being and the intelligible good which is achieved through such activity.
|Chart 7.4 Aquinas on Content of Natural Law ST I-II q94.a2|
"The rational creature is provident for itself and others; it has a share of eternal reason, whereby it has a natural inclination to its proper act and end; and this participation of the eternal law in rational creatures is called the natural law... The first principle in the practical reason is founded on the nature of the good; hence this is the first precept of law: good is to be done and promoted and evil is to be avoided. All other precepts of the natural law are based upon this; so that all the things which practical reason naturally apprehends as man's good belong to the precepts of natural law under the form of things to be done or avoided; all those things to which man has a natural inclination are naturally apprehended by reason as being good, and objects of pursuit, and their contraries as evil, and objects of avoidance." Thomas Aquinas 1224-1274
|Know / Love||God||Churches||Do not blaspheme||Honor and love of God|
|Curiosity||Truth||Schools||Shun ignorance; do not lie, bear false witness||Educate and perfect the mind; develop arts and sciences|
|Association||Friendship||Government; Intermediate Associations||No force or fraud in dealing with others||Patriotism, loyalty, charity, fairness|
|Procreation||Children||Marriage & Family||Prohibition of
- premarital sex / homosexuality
- Care and Education of children
- Honor father and mother
- Respect for the body
|Preservation of Life||Life, Health||Hospital; Medical Profession||Do not kill; do not steal||Always care, preserve health and life|
The political relevance of this teaching of natural law as a higher law can be readily appreciated in the American experience. Our founders appealed to "Nature and nature's God" as the foundation for the rights which government ought to secure. Martin Luther King Jr.'s Letter from a Birmingham Jail contains references to Aquinas and Augustine. The positive or human laws in the South maintaining racial segregation he rightly judged to be unjust laws. So too our present abortion laws must be judged unjust because of the gross violation of the fundamental tenets of natural law. Now Orestes Brownson expressed very well this need for a higher law after the American Civil War.
7.3 Brownson on Democratic Principle
Brownson stated the defects of the "democratic principle." (See "The Democratic Principle" Quarterly Review 1873) Such a principle declares that the will of the people is the sole foundation for political authority. But what will shape or restrain the will of the people? Brownson feared the philosophy of democratic government which would brook no restraint upon majority will. It is a doctrine of right makes right. There is no authority above the people -- not God, not nature, not Nature's God. Utility, not justice, shall then be the final rule of government. This doctrine he says is repugnant to liberty, as well as true human flourishing. Brownson recommended various political devices to protect freedom -- such as constitutionalism, rule by law, as well as some form of "concurrent majority." But most of all he looked to the sentiments, convictions, manners, customs and habits of the people. The people must acknowledge a moral law which guides and forms their conscience. Without moral order, and divine sanction, Brownson thought that the teaching of the democratic principle would corrupt a free people.
7.4 Simon and Famous Account of Authority with Stage Coach
YVES R. SIMON ON DEMOCRATIC AUTHORITY -- Simon embraces and develops what he calls the Transmission Theory of Authority; authority does indeed reside "in the people" but its meaning and significance must be carefully determined. It is of great significance according to Simon to articulate a theory of political authority. What is the origin and ultimate meaning of temporal power? This became one of the three main doctrinal issues between the Church and the modern state. The Popes condemned a theory that claimed men were bound only to laws to which they consented, as if there were no higher law, no divine law above them. Secondly it is important to interpret the sheer fact of obedience to civil law and understand its "moral weight." Finally we must come to a deeper understanding of the role of consent in political order.
As usual Simon goes to Aquinas for some key texts (ST I.II 90.3 Whether Any Person Can Make the Law; and ST I.II 97.3 AD 3 Whether Custom Can Obtain Force of Law; see pp 15, 79 of your Thomas text).
Simon explains the texts in light of very creative image. According to a "Coach driver" theory there is no authority other than popular will. Government is but a pure instrument of prior decisions of the people. This seems to comport with apparent account of democratic practices -- that representatives as hired servants; they must yield to public opinion and lobby respects autonomy. But this cannot be a sound philosophy for it leads to masked anarchy, majority tyranny. This theory mistakes the final cause for efficient cause. That is, political rule and authority must serve the common good. It does not mean that the law must be derived from popular will. It is this doctrine that is condemned by the church. We do after all need authority because of the very nature of the common good. But the other extreme doctrine is also false -- that political authority goes from God directly to the ruler after the fashion of "Divine right." This sets up a separate authority, perhaps as a Reaction to cab driver theory.
|Chart 7.5 On Three Theories of Authority, Yves R. Simon|
Coach driver -- no authority, pure instrument of prior decisions of the people
Divine right -- separate authority, not accountable to the people
Transmission -- authority derives from whole multitude in its pursuit of a political common good
So what is a correct and sound theory of the origin of authority? The Transmission theory locates authority in the whole multitude, i.e., authority resides in civil community not distinct persons. It is a function of the common good standard that such authority resides in the people or multitude, by way of final cause. Thus when there happens the designation of rulers this is accompanied by transmission of power. The ruler is a "vicar" of the people Thomas says. So as Pope is Vicar of Christ, the ruler is a vicar of the people, to rule under God for their good. Cajetan argued that the Pope cannot be deposed by people, but the ruler can be. Further, Bellarmine said that because no particular man is to rule by divine decree, therefore, the multitude has the authority. Finally Suarez concluded that democracy is the most natural form of government. It requires no institution, whereas other forms do. (See PDG 175-176) Aristotle likewise says that politics has a democratic bias insofar as the equality of human beings is reflected in the claim for equal citizenship.
Government by consent of governed has various levels of meaning. First, politics is act of reason and will, not force. Second, the people have a hand in the designation of governing personnel. Third, leaders receive power from people: (the transmission theory discussed above). Fourth, the people have a periodic exercise of consent: direct or representative. Fifth, the people retain the character of deliberative assembly. And finally persuasion is better than coercion. All of these are salutary dimensions of popular government and do not entail the undermining of moral order or divine law and natural law; in fact, they require them. It is the final meaning, that the people are bound only by consent is the great error as it is a recipe for anarchy.
7.5 Problem of Sovereignty in Maritain
JACQUES MARITAIN ON DEMOCRATIC AUTHORITY -- Maritain is concerned that the modern notion of Sovereignty is a false concept masking a dangerous philosophy of government. What is sovereignty? For Aristotle it was a highest power which determined the ends of the polis and comprehended them in its superior purpose. But it was a function of sheer will or power. But not so the modern notion of sovereignty. It now means there is a Power over and separate from the people, which is not bound by international law. Such a power is "Absolutely supreme with internal relation" or internal politics and this leads to centralism, not pluralism, tyranny not freedom. It is also a power which is without accountability. But Maritain asks do not the people have a right to supervise and control the state (MS: 53)? He too draws on the transmission theory of Cajetan and Bellarmine. The ruler is Vicar of people, but not of God; it cannot be divided by any superior essential property (MS: 50). But the People have a right to full autonomy or self-government and the Prince is not a peak above peak. The Prince is but a part representing the whole (MS: 36) for the sake of the common good. The prince rules by way of Vicarious participation, the medieval idea of representation (MS: 35). So Maritain claims that the People have the right to command by essence and the Rulers are vicars or who participate in people's right. They are thereby Accountable to people. Even the king is not separate; hence not absolute. Maritain thus is a republican, a supporter of Popular government. In such a regime the control over state is inscribed into the constitutional fabric; there must be periodic elections, because using Aristotle's argument for the many, does not a patient, while not being an expert in medicine, discharge a doctor when he is dissatisfied with his treatment? With greater reason the people -- in whose basic right to govern themselves those who wield authority participate -- are governed by their government, and the people control their government; they are the final judge of its stewardship (MS: 65). In addition, a republican government will respect Free speech, lobby and pressure groups, and ultimately respect the principle of structural pluralism discussed above in recognizing the standing of Intermediate groups like family, Church, school, and business.
Authority is a right to command that derives from the very nature of political community -- i.e. it is for the sake of common good. It has a popular origin in the sense that authority derives from will or consensus of people and from their basic right to govern themselves (MS: 127). Such a right is inherent (not instrumental); such right is permanent (not divested). Maritain claims that "The realization of this basic verity has been the conquest of democratic philosophy. In this connection, whatever the political regime may be, monarchical, aristocratic, or democratic, democratic philosophy appears as the only true political philosophy," (MS: 129). He is against political "absolutism," as Aristotle opposed tyranny, and perhaps kingship itself. He embraces a concept of Representation. "It is on the notion of representation or vicariousness, by virtue of which the very right of the people to rule themselves is exercised by the officials whom the people have chosen, that all the theory of power in democratic society rests," (MS: 130). Representatives are sent, missioned or commissioned by people; hence made by the people images of and deputies for the people. The "majesty" of civil order represents the people, "the whole multitude and its common will to live together." It can be a sign of collective heritage, hopes etc. So Maritain concludes that this democratic philosophy be given appropriate expression in body politic: that authority arises from base to summit; power is exercised within fixed limits; the rulers are designated by the people and management controlled by people. And yet as a vicar of people the political ruler does have real command, he is not mere instrument (a stage coach driver). Obedience is right; the ruler must exercise own judgment; and perhaps find his biggest challenge to be a real leader who must educate and awaken people in process of governing.