Natural Law—Origins

Below I've excerpted further selections from the excellent Hittinger book I mentioned. I hope to clarify some of the ambiguities of discussion and tie natural moral law (i.e., applied to humans) to natural law in general, this forum's proper subject. To clear the air, anyone who argues about law using anything outside the positive (human-decreed) law relies on presuppositions that can be called "natural law" in a broad sense:

There are no theological claims completely separate from propositions about what is good for human beings and about the moral norms regulating the choice of these goods. And though sometimes camouflaged, there are no secular claims completely separate from propositions about the ultimate ground of authority. (xv)

Parties discussing natural law position themselves in a conceptual space spanned by three points or foci.

How can we begin to situate such a protean family of doctrines as "natural law"? Yves Simon has usefully proposed that the theories and ideologies of natural law seek to discover or assert the "prior premises" of human law. Simon further suggests that the answers to "what is prior" to human law tend to coalesce around three foci: order in nature, order in the human mind, and order in the divine mind..... We can appreciate why the first two foci have such appeal in our time.... (xvi)

The natural law tradition began in the confluence of two very independent streams of thought, represented by Athens and Jerusalem:

One may doubt that the narrowing of natural law inquiry to the first two foci has made it easier to reach consensus about what is prior to human law. What should not be in doubt is that the term "natural law" historically arose in reference to the third of Simon's foci—order in the divine mind. It is well known that for the ancient Greeks physis and nomos are opposites. In a remarkable essay, "The Concept of Natural Law in Greek Thought," Helmut Koestler has shown that the term "law of nature" occurs fewer than six times in the Greek literature of the pre-Christian era. In the work of the Jewish philosopher and exegete Philo of Alexandria (c. 20 B.C.–A.D. 50), however, more than thirty occurrences of the term can be found. As a term that meant something more than a comical union of opposites, or a merely metaphorical extension of concepts that properly reside elsewhere, natural law emerged as pasrt of the repertoire of moral and legal thought once the Greek logos-metaphysics was appropriated by the biblical theology of a creating and lawgiving God. Order in things and in the human mind are now laws, but the effect of a law that is not positive law. (xviii-xix)

Aquinas gives two reasons natural law is called "natural":

1. we partake of the law by the natural power of reason, and
2. by mode of promulgation the law is instilled in us "so as to be known naturally" (xxi-xxii)

In the modern age Catholics have made common cause with Protestants against Kant's dualism and moral autonomism to the point that the Pope (VS 41) has employed an originally Protestant term:

...the term "theonomy" seems to have been coined orginally by nineteenth-century Protestants theologians (mostly Lutheran) who want to overcome Kant's dichotomy of autonomy and heteronomy. That dichotomy, of course, expressed a complete anthropocentric setting of ethics. Either human practical reason acts according to a merely conditional maxim drawn from instinct, or practical reason acts according to an unconditional maxim grasped a priori by the mind. Protestant theologians of the era well understood that, on this view, obedience to divine law of any kind would prove heteronomous [i.e., extrinsic, non-natural]. Hence, they proposed a third term, theonomie to make clear that the human drama of autonomy versus heteronomy is relative to God's law as revealed in Scripture. (xli-xlii)

Hittinger includes an illuminating discussion of the problems with the special commission report submitted to Pope Paul VI (1967) on the topic of artificial contraception. The report foundered on an unwitting reliance on the modern notion of nature and natural law.

...the authors of the report set up a dichotomy between what we have been calling the first two foci of natural law, order in nature and order in the [human] mind. If the natural law is order in nature, then man is prevented from exercising his own natural gift of prudence. Given this opposition—nature or prudence—the latter would seem higher than the former.... The authors of the report mean by prudence the liberty of intelligent choice about the so-called gifts of nature without a prior precept. The concrete norms are entirely the work of the human mind.... Hence, the traditional concept of participation in a higher order is not so subtly transposed into a deism in which God supplies the material, but man supplies the concrete norms. From this perspective, it follows that binding law can emerge only after the fact of human dominion. As in various state-of-nature scenarios of the Enlightenment [secular subsitutes for Genesis, cf. p.14], we have here a Genesis 2 without a norm.

When Hittinger calls "gifts of nature without a prior precept" is what Wallace means by "nature as matter," that is, nature as lacking instrinsic order or reference outside of man's domination (ala Francis Bacon). We'll return to deism in a future discussion. My purpose in this post has been merely to clarify the terms of discussion and tie them in to the physical law of nature you and I have been discussing in this forum. I've only scratched the surface of Hittinger's introduction. I hope to review his discussion of natural law in the American context, especially the parallels between Scott v Sandford (1857) and Planned Parenthood v Casey (1992).

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St. Thomas Aquinas, ST I-II, 90.4 ad 1.

Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, Delaware: ISI Books, 2002).

Helmut Koestler, "The Concept of Natural Law in Greek Thought" in Religions in Antiquity, ed. Jacob Neusner (Leiden: E.J. Brill, 1968), 534–35.