BASIC PRINCIPLES IN ETHICS AND POLITICAL PHILOSOPHY - Fourth Class

Prof. C. Wolfe

Moral and Political Philosophy

Intro.

Aristotle’s Politics - different levels of community, from the family, through the tribe or clan, to the polis, which is distinctive because it is a self-sufficient community, ordered not just to mere life, but to the good life, which makes the development of the full range of human capacities possible.

I. The Common Good

The Thomistic understanding of the common good can be understood as a mean between two extremes:
-it is not understood as the sum of individual goods (as libertarians tend to think of it) - an individualistic conception of the common good
-nor is it a separately existing entity, which exists apart from the goods of the people who make up the community - a collectivistic conception of the common good

A. Does Civil Society Have a Common Good for Its Object?
(Yves Simon’s The Philosophy of Democratic Government):

-What are the distinguishing features of a society relative to a common good? Are they found in civil society?
-The features are:
1 - some transitive actions are traceable, not to any particular individual, but to the community; this is “collective causality”
2 - the transitive actions of the community are prepared and intrinsically conditioned by immanent actions of knowledge and desire in which the members commune; this is “communion in immanent actions”
3 - communications in a community assume a new character, calculated to produce communions and to entertain them; these are “communion-causing communications”
-These 3 features ARE, in fact, present in civil society:
1 - collective causality includes:
A - defense against internal and external enemies
B - binding commitments with foreign societies (e.g., treaties)
C - overall status of
-ownership [laws regarding property, including the decision to allow or defend private property]
-education [laws regarding education, including the decision to allow private education and to recognize natural parental rights to direct education]
-temporal life in its relation to the spiritual [church-state relations]
2 - communion in immanent actions
-feelings like loyalty, patriotism, allegiance to one’s country
[but also intellectual and moral goods – which is especially possible, because, unlike material goods, they can be shared fully – whatever I have is not necessarily a diminution of what you might have
-digression on an example: Voegelin’s discussion, in his New Science of Politics, of Greek drama, and, in particular, Aeschylus’ The Suppliants; the “participation” of the Athenian citizens, as they are drawn into a drama that raises the question of what the demands of dike or justice are, is a sharing in an important intellectual and moral good]
-especially as expressed in ceremonies, e.g., parades, inaugurations, national funerals, flag-raising in schools
[-this includes the “ceremonial deism” that O’Connor discussed in the Pledge case]
3 - communion-causing communications
-ceremonies
-teachings of civics in school

B. Current debate within natural law thought: is the common good “instrumental” or not?

-John Finnis has developed the argument (in articles and books) that the common good is limited and instrumental: “to secure the whole ensemble of material and other conditions, including forms of collaboration, that tend to favor, facilitate, and foster the realization by each individual in that community of his or her personal development” (NL, L, and M, p. 5)
[also?: “the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment” (Gaudium et Spes, #26)]
-he has challenged traditional interpretations of Aquinas that assert the close congruence of Aquinas’ view of the purposes of govt with Aristotle’s
-he interprets Aquinas’ texts about the promotion of virtue by govt in light of a notion of the “public good” that confines this virtue to matters affecting the public
-so, for example, he seems to suggest that private acts of sodomy are not appropriately prohibited by law – though this does not mean that acts harmful to the public good (e.g., gay marriage) cannot be prohibited
-Michael Pakaluk (in a Review of Metaphysics article in 2000) criticizes Finnis, arguing that he misinterprets Aquinas, and that the promotion of virtue broadly-conceived is indeed an important purpose of govt according to Thomas

II. Political Authority: Is Political Authority Natural?
(again, drawing on Yves Simon’s Philosophy of Democratic Government, chap. 1)

-the problematic: Madison’s quote in the Federalist Papers: if men were angels, no need for govt
-deficiency theory of govt and political authority: authority is “substitutional” - as in parent over child
1- aims at the good of the governed
2-made necessary by a deficiency
3-is pedagogical and aims at its own disappearance
-but does authority have essential functions, not rooted in deficiencies? To answer this question: imagine a society made exclusively of intelligent and virtuous persons; is govt necessary in this situation [e.g., in the Garden of Eden]?

A. First argument (regarding choice of means):

1 - communities require unity of action
2 - unity of action depends on unity of judgment, which is secured either by unanimity or authority
3 - in practical affairs, truth is a relation of conformity between a judgment or a proposition and the requirements of an honest will (“right desire” Nich Eth 1139a21), which is possessed as “affective knowledge,” not by rational demonstration. It is therefore not a judgment which admits of rational communication (that is, which cannot necessitate the assent of the minds). Unanimity cannot, therefore, be brought about by demonstration.
4 - when the means to the common good is uniquely determined (i.e., when it is the only means), then affective community supplies an essential basis for unanimity (e.g., when a country is invaded, then any nation which is not already disintegrated can approximate unanimity with regard to the only means to preserve itself, i.e., war or defense.
5 - when there is a plurality of means to procure the common good, there is no foundation whatsoever for unanimity
6 - therefore the common good demands that the problem of unity of action be solved by way of authority
-Objection: the plurality of means arises from deficiency (as opposed to the good nature of things)
-Response: wealth, health, and strength cause independence: “plenitude causes choice, poverty leaves no choice;” authority to achieve unity of action, therefore, grows as deficiencies are made up, and therefore “originates not in the defects of men, but in the nature of society. It is an essential function.”

B. Second argument (regarding willing of the common good materially)

-Opposing argument: in a society of defective men, it is obvious that authority would have to direct vicious men to the common good; but in a virtuous regime, the virtue of each person guarantees that he intend the common good, and not by accident
-Problem with this argument: does the virtuous person will the whole common good, or just a fundamental aspect of it? If the latter, then authority may still have an essential function
-Simon’s argument
-begins by examining some cases, e.g., the wife of a murderer who may be sentenced to death, or different teachers in a school (e.g., different disciplines desiring larger share of resources)
-series of propositions
1 - virtue implies love for the common good, a willingness to sacrifice one’s own advantage to its requirements
2 - the common good may be intended formally without being intended materially (this is related to Simon’s earlier observations “that particulars be properly defended by particular persons matters greatly for the common good itself”); e.g., the wife of a murderer ought to wish her husband to live, though the common good may demand capital punishment
3 - the virtue of a private person guarantees the intention of the common good formally considered, not materially considered (that is, the wife of the murderer is not less virtuous for wishing that her husband’s life by preserved)
4 - (the keystone of the theory): society would be harmed if everyone intended the common good materially as well as formally; in a material sense, particular persons and groups ought to intend particular goods. The root of this is metaphysical, transcending human deficiencies. The unity of a multitude is different from the unity of an individual [cf. Aristotle’s objections to Plato’s communism, Politics 1261a10]. The extinction of qualitative diversity impairs the metaphysical function of plenitude. There is no good of a multitude unless particular goods are intended by particular appetites, and taken care of by particular agents.
5 - the intention of the common good, materially considered, is the business of a public reason and a public willl – otherwise it might not be intended at all
6 - the intention of the common good by the public reason and will necessarily develops into a direction of society by the public reason and will toward the common good formally and materially considered; i.e., the intention of the common good, materially considered, demands the operation of authority
-If political authority and the common good are natural, what are the causes of the widespread belief that civil govt is an evil [even if a necessary evil]?
1 - the abuse of civil authority is frequent and frequently grave
2 - among the purposes of civil govt, the most obvious and consequently the best known is the repression of evildoers [i.e., the enforcement of criminal law], so the power of coercion is often treated as the defining feature of the state
3 - two accidents:
a - the failure to distinguish between the substitutional and essential functions of govt
b - the construing of the ends of civil society after the pattern of the dominion of servitude, in which the end of govt lies in the private advantage of the masters
4 - the illusion that the good will of each would suffice to guarantee the intention of the common good. In fact, the common good demands that particular persons should do full justice to the goodness of the particular good, and this makes some overall direction toward the common good necessary

III. What are the Grounds for Legitimate Political Authority?

1. Contrast Thomistic thought and modern liberalism (the variants of social contract thought in Hobbes, Locke, and Rawls);
-in social contract theory, popular consent seems to be both the ground of the legitimacy of authority and also the means by which the one who holds legitimate authority is determined (even short of democracy, in the choice of the form of govt)
-But it is necessary to distinguish the question of the ground of authority from the mechanism by which one decides who will exercise political authority; these are two separate questions
A. For Thomas, and Catholic Social Thought, the ground of political authority is God
-not by divine positive law, but rather by natural law: especially through human nature and what it requires
B. The actual determination of the ruler will depend on the form of government, and what is the best form of govt will vary with circumstances
-later Thomistic commentators inclined toward the “transmission theory,” according to which no one person or group has the natural right to rule, and therefore the right to determine who will exercise the power to rule is left with “the multitude”

IV. Various Forms of Government

-openness of classical political philosophy (and Catholic social thought) to various forms of govt, depending on concrete circumstances of a people
-But there has been movement toward the view that democratic govt is preferable, where conditions permit (e.g., much greater literacy and education)
-This is on what might be called Tocquevillean grounds: the business of government may be done less well, but the impact on the character of the citizenry – expanding their horizons and stimulating their initiative and capacities – makes the whole society better off

V. Rights

Question: why do rights not have a prominent place in classical political philosophy; has the contemporary turn toward rights talk been a good one?
-Rights are central to liberalism, but barely appear in classical natural law, which focuses on what is right by nature rather than on the rights we have by nature. Yet modern representatives of the natural law tradition, and in particular, the social teachings of the Catholic Church, have strongly embraced rights in the twentieth century.
-Some (e.g., the late Ernest Fortin and Robert Kraynak) argue that there are dangers in the adoption of rights-language, because it is imprudent to employ language whose origin is in philosophical systems (such as Hobbesian-Lockean natural rights theory or Kantianism) that are antithetical in so many respects to classical natural law theory and which may encourage some of the defects of those systems (such as individualism). Some truth in this.
-But such arguments do not come to grips with a key question: putting aside questions of prudence for the moment, let me simply ask whether it is true that people have “rights.” I think the answer that any proponent of classical natural law has to give is clearly “yes.” If it is wrong for A to hit B, then B can be said to have a right not to be hit by A. If it is a principle of justice that A ought to give x to B, then B can be said to have a right to x from A.
-There is a need to recognize a larger context for rights, but that does not mean that the idea of rights, and emphasis on them, is wrong.

BASIC PRINCIPLES IN ETHICS AND POLITICAL PHILOSOPHY - Third Class

Prof. C. Wolfe

Moral and Political Philosophy
Class Three: Natural Law



I. Brief Background: Natural Law in the History of Philosophy

-Classical Greek philosophy spoke more about what is “right by nature” or natural right than it did of “the law of nature” or natural law (though Aristotle uses the term in his Rhetoric)
-the Stoics had an idea of an eternal law and lawgiver, and therefore an idea of natural law
-natural law plays a significant role in some of Cicero’s writing; there is disagreement about the extent to which those characters who articulate a natural law position represent Cicero’s own views or not
-St. Augustine uses the term “eternal law” rather than “natural law”; the distinctions between Reason and Revelation, and philosophy and theology, are less sharp in his thought (and there is debate about whether this is good or bad)
-classical natural law teaching, which is what I will be describing, finds its greatest representative in Thomas Aquinas, in the 13th century
-Aquinas’ views were very influential, though controversial, in his own lifetime, and there have been revivals of his thought at various times since then (especially in 16th century Spain and after Leo XIII), but the dominant trends in philosophy quickly went in different directions, with the shift to nominalism in Ockham (14th century), and then the Renaissance and Reformation and Englightenment
-much confusion is engendered by the fact that Enlightenment thinkers like Hobbes, Locke, and Rousseau extensively use the term “law of nature” and are often thought of as “natural law” thinkers, though their conception of natural law is profoundly different from Aquinas’
-in the last part of the twentieth century, in addition to the neo-scholastic revival and its emphasis on natural law, in scholars such as Jacques Maritain, Etienne Gilson, Yves Simon, and Ralph McInerny, there was also the birth of a “new natural law” formulated in terms more compatible with analytic philosophy, by scholars such as Germain Grisez, John Finnis, Joseph Boyle, William May, and Robby George; the new natural law claimed strong roots in Aquinas, but claimed to develop his thought in important respects and depart from it in others

II. Aquinas on Natural Law

The Immediate Context of Natural Law: the Kinds of Law

Aquinas gives a basic definition of law in the Treatise on Law in I-II, Q. 90-114 of the Summa Theologiae. This definition (Q. 90) has four elements: law is 1) an ordinance of reason 2) for the common good 3) made by him who has charge of the common good and 4) promulgated.
Thomas describes four kinds of law (Q. 91). The first is the broadest, overarching law, which includes all of God’s providential plan for the entire universe and for all time, is God’s eternal law.
Second is natural law, which is man’s participation in God’s eternal law. In the case of minerals, plants, and animals, God’s providence, imprinted in their being, is achieved by their spontaneous natural activity, without their cooperation. But in the case of human beings God wanted his aims to be achieved with their free cooperation, and so men, in a sense, share in God’s Providence. Men have a share in the Eternal Reason, whereby they have a natural inclination to their proper act and end, and this participation in the eternal law of the rational creature is called natural law.
Third, there is human law, which is the positive, enacted law of human societies. By human law, men try to carry out and apply the natural law in various ways. Aquinas describes human laws as conclusions drawn from the general and indemonstrable precepts of the natural law. (Discussion elsewhere indicates that some human laws directly enforce natural law, e.g. laws against murder, other laws try to achieve goals given by the natural law with ways and means human beings devise, based on knowledge of many varying circumstances of human life, e.g., various economic policies designed to ensure that everyone has access to the resources they need to live a good life, and other laws specify particular guidelines that are necessary to achieve natural law principles, e.g., laws that set maximum highway speed limits and establish rules for right of way, in order to protect human life.)
Finally, besides eternal law, the natural law written in our being, and human laws, God has also directly intervened in human history and given us divine positive law: God’s direct commands. This was necessary for various reasons: because our supernatural end requires supernatural law, because of the uncertainty of human judgment (especially regarding contingent and particular matters), because man is competent to make laws regarding exterior acts, but not those regarding the interior movements hidden from him, and because human law, due to its limitations, can forbid only some evil deeds, and others must be forbidden by divine law. (Some divine laws confirm what reason can, in principle, know; for example, “do not kill,” “do not commit adultery,” and “do not steal.” Other divine commands are known only through revelation; for example, “keep holy the sabbath,” the ceremonial precepts of the Old Testament, and the Beatitudes of the New Testament.)

The Larger Context

One brief note about context: what I have discussed so far focuses on the immediate context, namely, the discussion of the definition and kinds of law. It would be good to remind ourselves too, however, that there is a broader context. In the first part of the Summa, Aquinas discusses God, creation, angels, man, and divine government. In the first part of the second part, he discusses human acts and the passions, and then turns to the “intrinsic principles of human acts” (habits, virtues, vices, sin) and finally “the extrinsic principles of human acts” (law and grace). In the second part of the second part, he discusses the theological virtues (faith, hope, and charity), the moral virtues (prudence, justice, fortitude, and temperance), and virtues relating to certain sorts of people (those with special graces, certain vocations, and particular states of life). The third part deals with the mystery of the Incarnation.
My point here is a simple reminder: that natural law is not the totality of Aquinas’s discussion of human action and morality. In fact, while it is essential, it is still only a very limited part of a much larger whole.

The Content of Natural Law

What is the actual content of “natural law”?
First or General or Common Principle or Precept(s): The first principle of speculative reason is based on the notion of “being” and it is the self-evident principle of non-contradiction. Likewise, the first principle of practical reason is based on the notion of “good” and it is the self-evident principle that good is to be done and pursued, and evil is to be avoided. All other precepts of the natural law are based upon this; so that “whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.”
Also at this most general level are “Act according to reason” and “do harm to no man” and perhaps (it is a bit unclear whether this rests only on reason) “Love God and neighbor.” The general precepts also seem to include the principles of the Decalogue, at least as to the essence of justice they contain.
The first principles or common precepts are known to all. With regard to the Decalogue principles, however, while they are known in themselves, men may fail in applying them to particulars (e.g., whether this or that be murder, adultery, or theft).
Moving From Common Precepts to Conclusions: Since the idea of something “good” is that it is desirable – we want it, as an end – “all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit. . .” So the order of the precepts of natural law follows the order of our natural inclinations.
[Just a note to avoid one misunderstanding: our “natural inclinations” are not equivalent to impulses “typical human impulses” the specific things that many human beings actually desire – which are often disordered, due to original sin; the natural inclinations to which Aquinas is referring are the goods that fulfill our nature as God created it before the first sin, such as knowledge, marriage and family life, work well-done, friendship.]
There are various inclinations in man’s nature. First, like all substances, we seek the preservation of our own being, according to its nature, so that whatever preserves human life belongs to the natural law. Second, because of the elements of our nature that we share with animals, things “which nature has taught to all animals, such as sexual intercourse, education of offspring and so forth” belong to the natural law. Third, according to man’s own nature, man has “an inclination to the good, according to the nature of his reason” which includes a natural inclination “to know the truth about God and to live in society,” so that the natural law includes things like shunning ignorance, and not offending those among whom one has to live. Note that the general principle that man ought to act according to reason means that all three of these sets of inclinations involve men doing things according to reason, since even those things we have in common with other substances and with animals ought to be done according to reason.
Aquinas says that the first, general principles of natural law are self-evident to all, but the conclusions drawn from these general principles vary in both their rectitude and knowability. As we get more specific about moral principles and consider their application to concrete circumstances, they are more difficult to know and the directives for action are less likely to be universal (that is, they are less likely to be “absolute” or exceptionless). For example, in general, borrowed goods should be returned to their owners, but not if we have borrowed a gun from someone who asks for it back when he is clearly furious and wants to go use it on someone. Nonetheless, there are still some exceptionless moral norms, e.g., do not murder (specifying this as “directly kill innocent human beings”), do not torture people, do not commit adultery, do not steal, do not lie. (Evaluating the latter – what exactly is a theft, for example – may require prudence, however: just as not all killing is murder, not all taking of other’s property is theft).
Because of the diversity of human goods and the ways of achieving goods (not all of which can be pursued at the same time), universal moral commands regarding particular acts are most often formulated in negative terms. That is, we can more often state in universal terms what human beings specifically ought not to do than what they ought to do, though there are some examples of the latter in more general terms, e.g., “worship God,” “honor your parents.” Another reason why positive goods are not commanded is that there is such a great diversity of goods, and different people will pursue the good in different ways.