Natural Law for Doubters


With so many natural foods available these days for your health and nutrition, you might find yourself looking for natural and legal food for your mind. Now, Edward B. McLean, Beesley professor of political science at Wabash College, has served such fare. Common Truths: New Perspectives on Natural Law is a feast of views offered by today’s great natural law “chefs,” as part of the Goodrich Lecture Series, and all for a modest price.

McLean divides this collection into three basic parts: natural law and history, topics in natural law theory, and the praxis of natural law. In the first part, J. Rufus Fears offers a flowing and fascinating study of the Greek and Roman contributions to natural law discourse: from the beginnings in the Greek playwrights and philosophers, through its development by the Stoics, particularly Cicero and Seneca, to its “digestion” by Ulpian and Justinian. Fr. John Jenkins blows the dust off the contemporary portrait of Aquinas as a hopelessly close-minded, medieval cleric, to reveal an “advocate of diversity”: St. Thomas drew largely on the writings of non-Christians–most notably Aristotle but also the Jewish scholar Maimonides and the Islamic writers Averroës and Avicenna–in defining the value of human nature and natural virtues.

On this theme of seeking unity in diversity, Timothy Fuller examines John Locke’s initially unpublished Questions Concerning the Law of Nature, where Locke takes up some of the same questions about natural law addressed by Aquinas, but during a very different time, in the wake of the Reformation, when sources of theological authority were splintered and in the midst of a “new awakening” to a variety of non-European cultures. Rounding out the first part, Alisdair MacIntyre sets out to defend the “plain person’s” capacity to understand the fundamental concepts of law against experts and other denizens of the culture of advanced modernity.

 

What is dignity?

In the second part, Virginia Black opens her essay on the meaning of “dignity” by laying out a variety of understandings of the term, drawn from scholars and plain people alike, and from these diverse perspectives, she derives several general senses—ranging from the external and empirical to the inherent and mysterious—and in the process, I think, places the person in the context of the natural law.

Robert George undertakes the connection between natural law and positive law, emphasizing the distinction between what is given (the natural law) and what is created by humans (the positive law), and the nature and limits of creating law.

Russell Hittinger follows nicely with a rejoinder on natural rights and the limits of constitutional law. It is interesting not only historically—citing as it does the clear distinction between the federal constitution, with few, well-defined powers, and the several states’ constitutions, with broad moral powers—but also constitutionally, since he argues that natural law is not necessarily well-served by a federal judiciary keen on discovering new fundamental rights. Janet Smith rounds out this topical section with a too quick but sensible study of natural law and sexual ethics.

The third part relates specific bodies of positive law to the natural law: the late professor Edward Murphy addresses contract law; attorney William N. Riley, tort law; and attorney Ian McLean, criminal law. Each of these essayists—for some reason, all from Indiana—offers a helpful view of the natural law bases for Anglo-American jurisprudence. Charles Rice, another Indianan, frames this trio, and ends the collection, with the prospects for natural law in the 21st century, applying his Rockne-esque style. It is difficult to argue with Professor Rice’s concerns or conclusions—not merely because of his pugilistic discipline but also because the problems are real and the solutions he offers are peculiarly Catholic.

The truth is Common Truths has some hard spots. A few of the essays are difficult to follow, either because of the texts themselves, which might have used more red ink, or because of the subject matter and the authors’ approach to it. For example, George’s language, like that of his mentor John Finnis, is almost too dense (and parenthetic) for a marginal scholar like me, though he resolves his points clearly toward the end. MacIntyre takes too broad a swipe at lawyers—many of whom are just plain folks themselves—as well as his close natural law cousins. Several essayists, such as Professor Rice, also rely explicitly on biblical or theological sources for their arguments. This is fine, of course, when one is arguing theology or even the underpinnings of natural law but not natural law itself.

Does this last tendency to rely on a “higher” authority suggest, as many critics have, that natural law arguments really can’t get off the Catholic farm? The sweet spots of the collection, I believe, answer “no.” Ralph McInerny’s introductory essay offers a clear and elegant discussion of the first principle of natural law; though, like Aquinas’s discourse on the subject, it leaves us wishing he would continue. But McInerny also issues a challenge of sorts, suggested by the book’s subtitle: to bring the precepts of natural law to a diverse and doubting, or perhaps forgetting, audience and, by necessity, to draw on the scattered and diminished lexicon of our times.

This challenge is met in many instances. For example, Black’s “dialogue” on dignity is very effective for us plain folks. Likewise, without detracting from the other essays, I found the contributions of Professors Fears, Hittinger, and Smith and Fr. Jenkins to be insightful in new ways. Much more can be said of this collection than permitted by this “too quick” review. But don’t take my word for it, taste and see for yourself.

Common Truths: New Perspectives on Natural Law
Ralph McInerny, Russell Hittinger, et al., edited by Edward B. McLean, ISI Books, 345 pages, $24.95

 

This article first appeared in the June 2000 issue of Crisis Magazine.

By

Joseph Stuart is an attorney and holds a graduate degree in philosophy.

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