Kelsen and Aquinas on "the natural-law doctrine"

Notre Dame Law Review

Volumn 75, Issue 5, 2000, Pages 1625-1645

  George, Robert P ^a  

^a PRINCETON UNIVERSITY   (United States)

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EID: 0034373366     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (105)

1. Hans Kelsen, The Natural-Law Doctrine Before the Tribunal of Science, W. POL. Q., Dec. 1949, at 481, 481, reprinted in HANS KELSEN, WHAT is JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE: COLLECTED ESSAYS BY HANS KELSEN 137, 137 (1957).
2. Hans Kelsen, The Natural-Law Doctrine Before the Tribunal of Science, W. POL. Q., Dec. 1949, at 481, 481, reprinted in HANS KELSEN, WHAT is JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE: COLLECTED ESSAYS BY HANS KELSEN 137, 137 (1957).
3. I shall, for the most part, refrain from commenting on the accuracy of Kelsen's attributions to other natural law thinkers of the various propositions he asserts to be constitutive of, or in some sense integral to, "the natural-law doctrine." For what it is worth, my view is that Kelsen's essay is, on this score, a "mixed bag."
4. KELSEN, supra note 1, at 137.
5. See THOMAS AQUINAS, SUMMA THEOUDGICA pt. I-II, q. 94, art. 3 (Fathers of the Eng. Dominican Province trans., Benzinger Bros., Inc. 1947) (1485).
6. However, Aquinas is hardly oblivious to the distinction. See id. at pt. I-II, q. 91, art. 4 (deploying the distinction in teaching that it is unwise for human law to prohibit every act of vice).
7. KELSEN, supra note 1, at 137.
8. See 4 THOMAS AQUINAS, SCRIPTUM SUPER LIBROS SENTENTIARUM d. 2, q. 1, art. 4, sol. 1, ad. 2 (Maria Fabianus Moos ed., 1947) (1469) (stating that moral precepts are in accord with human nature because they are requirements of natural reason); AQUINAS, supra note 4, at pt. I-II, q. 71, art. 2 ("[V]irtue[s] . . . [are] in accord with man's nature, for as much as [they] accord[] with his reason: while vice[s] [are] contrary to man's nature, in so far as [they are] contrary to the order of reason.").
9. See, e.g., THOMAS J. HIGGINS, MAN AS MAN: THE SCIENCE AND ART OF ETHICS 49-69, 88-100, 120-26 (1958).
10. See LLOYD L. WEINREB, NATURAL LAW AND JUSTICE 58 (1987) ("[N]atural law [according to Aquinas] directs us to fulfill our natural inclinations . . . .").
11. For a careful and amply documented explanation of this critical point, see JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY 90-94 (1998).
12. KELSEN, supra note 1, at 137.
13. See AQUINAS, supra note 4, at pt. I-II, q. 94, art. 2. On the (much misunderstood) meaning of "self-evidence" in Thomistic ethical theory, see Robert P. George, Recent Criticism of Natural Law Theory, 55 U. CHI. L. REV. 1371, 1387-89, 1413 (1988).
14. See Germain Grisez, The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2, 10 NAT. L.F. 168 (1965).
15. See FINNIS, supra note 10, at 90-94.
16. See George, supra note 12, at 1412-14.
17. So, for example, knowledge of the facts of human embryogenesis and intrauterine human development is critical to a proper application of moral principles to the question of abortion.
18. KELSEN, supra note 1, at 137.
19. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 34 (1980).
20. See Robert P. George, Natural Law and Human Nature, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 31 (Robert P. George ed., 1992).
21. See FINNIS, supra note 10, at 90.
22. KELSEN, supra note 1, at 137.
23. On the impact of voluntarism on Christian moral theology after Aquinas, see 1 GERMAIN GRISEZ, THE WAY OF THE LORD JESUS: CHRISTIAN MORAL PRINCIPLES 12-13 (1983). In the same work, Grisez provides a powerful critique of voluntarism and defense of the authentically Thomistic alternative account of moral obligation as a kind of rational necessity. See id. at 103-05; see also FINNIS, supra note 18, at 42-48, 337-43.
24. See FINNIS, supra note 10, at 79-86.
25. See id.
26. KELSEN, supra note 1, at 138.
27. AQUINAS, supra note 4, at pt. I-II, q. 91, art. 2.
28. See id. at pt. I-II, q. 91, art. 1.
29. Finnis sums up Aquinas's teaching on "the eternal law" as follows: God envisages and freely chooses the whole order of things, prescribing (so to speak) that order by impressing its principles (the "laws of physics," the "laws of logic," and so forth) onto or into the various orders of created entity and process. And this act is to the common benefit of the whole (and thus of its parts). So we can think of this supreme act of government as legislative, and its rational content as a law which, like its author, is timeless (even though that content is freely chosen, not necessary, and regulates creatures which are all within time). FINNIS, supra note 10, at 307 (footnotes omitted).
30. See id. at 309.
31. See Genesis 1:27.
32. AQUINAS, supra note 4, at pt. I-II, prologue.
33. See id. at pt. I-II, q. 91, art. 2.
34. See id. at pt. I, q. 50, art. 4.
35. These points are explained more fully in Recent Criticism of Natural Law Theory. See George, supra note 12, at 1384-85. Unfortunately, a key line on page 1384 was omitted by the printer in the version of this essay that appeared in the University of Chicago Law Review. It would be better, therefore, for readers to consult the revised version because it states, "While both parts, insomuch as they depend ultimately on God's free action, are suffused with meaning and value, the latter part is also suffused with humanly given meaning and value (by virtue of the contributions of human intelligence and free action)." ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW 31, 41 (1999) (emphasis added).
36. GEORGE, supra note 34, at 42.
37. FINNIS, supra note 18, at 49.
38. KELSEN, supra note 1, at 139.
39. Id. at 140.
40. The origins of this approach to natural law theory are not in Aquinas, but rather, in later writings such as those of the early seventeenth-century Spanish, Jesuit, moral and political thinker Francisco Suárez. See 1 FRANCISCO SUÁREZ, DE LEGIBUS AC DE DEO LEGISLATORE (1612), in 2 SELECTIONS FROM THREE WORKS OF FRANCISCO SUAREZ, S.J. 1, 58-73 (James Brown Scott ed., Gwladys L. Williams et al. trans., William S. Hein & Co. 1995); 2 id., in 2 SELECTIONS FROM THREE WORKS OF FRANCISCO SUÁREZ, S.J., supra, at 73-89. For a useful account of Suárez's influence and valuable critique of his approach to natural law theory, see FINNIS, supra note 18, at 43-47, 54-57, 337-43, 347-50.
41. The origins of this approach to natural law theory are not in Aquinas, but rather, in later writings such as those of the early seventeenth-century Spanish, Jesuit, moral and political thinker Francisco Suárez. See 1 FRANCISCO SUÁREZ, DE LEGIBUS AC DE DEO LEGISLATORE (1612), in 2 SELECTIONS FROM THREE WORKS OF FRANCISCO SUAREZ, S.J. 1, 58-73 (James Brown Scott ed., Gwladys L. Williams et al. trans., William S. Hein & Co. 1995); 2 id., in 2 SELECTIONS FROM THREE WORKS OF FRANCISCO SUÁREZ, S.J., supra, at 73-89. For a useful account of Suárez's influence and valuable critique of his approach to natural law theory, see FINNIS, supra note 18, at 43-47, 54-57, 337-43, 347-50.
42. Grisez and Finnis, for example, and other leading contemporary moral philosophers and theologians working broadly within the Thomistic tradition, explicitly reject as logically illicit any proposal to derive "ought" from "is." See FINNIS, supra note 18, at 33-36; GRISEZ, supra note 22, at 105.
43. For what is often taken to be Hume's statement of discovery of the logical fallacy, see 2 DAVID HUME, A TREATISE OF HUMAN NATURE bk. III, pt. I, §1 (1740), in 2 DAVID HUME, THE PHILOSOPHICAL WORKS (Thomas Hill Green & Thomas Hodge Grose eds., 1964).
44. For what is often taken to be Hume's statement of discovery of the logical fallacy, see 2 DAVID HUME, A TREATISE OF HUMAN NATURE bk. III, pt. I, §1 (1740), in 2 DAVID HUME, THE PHILOSOPHICAL WORKS (Thomas Hill Green & Thomas Hodge Grose eds., 1964).
45. On Hume's lack of care in this regard, see FINNIS, supra note 18, at 37-38 n.43.
46. See AQUINAS, supra note 4, at pt. I-II, q. 94, art. 2.
47. Indeed, something very much like the reverse is true. A complete (theoretical) account of human nature presupposes practical knowledge (a set of "value judgments") which provides data for theoretical inquiry, understanding, and judgment. Aquinas adheres to the Aristotelian methodological (and epistemological) principle, according to which we come to know human nature by knowing human potentialities; these we know by knowing human acts and by knowing their objects, namely, the more-than-merely-instrumental goods (bona) to which the self-evident and indemonstrable first principles of practical reason direct human choice and action. See FINNIS, supra note 10, at 90-91.
48. All of this is made abundantly clear in Grisez, supra note 13. This unsurpassed textual study corrects many common misunderstandings of Aquinas's theory of natural law including, notably, the idea that Thomistic ethical theory purports to deduce the "ought" of morality from the "is" of (human) nature. See also GRISEZ, supra note 22, at 103-05, 112 (observing that "St. Thomas was careful to explain that practical conclusions always must be resolved into practical principles which are distinct from and irreducible to theoretical ones").
49. See KELSEN, supra note 1, at 141.
50. See Jeffrey Goldsworthy, Fact and Value in the New Natural Law Theory, 41 AM. J. JURIS. 21 (1996).
51. See id.
52. See Robert P. George, A Defense of the New Natural Law Theory, 41 AM. J. JURIS. 47 (1996). For a revised version of this essay, free of multiple printer's errors that make it difficult for readers to grasp the sense of several sentences in the original, see GEORGE, supra note 34, at 18-33.
53. See George, supra note 49, at 49.
54. See FINNIS, supra note 10, at 58-61.
55. KELSEN, supra note 1, at 141.
56. Id.
57. Id. at 142.
58. Id.
59. Id. (footnotes omitted).
60. See AQUINAS, supra note 4, at pt. I-II, q. 94, art. 2.
61. See id. Aquinas formulates the first and most general principle of practical reason as "good is to be done and pursued, and evil is to be avoided." Id. (emphasis added). On the proper interpretation of this principle and, particularly, the meaning of "good" and "bad" as including what is worthwhile and the privation of what is worthwhile generally and not (merely) what is morally right and wrong, see generally Grisez, supra note 13.
62. See Germain Grisez et al., Practical Principles, Moral Truth, and Ultimate Ends, 32 AM. J. JURIS. 99, 123-25 (1987).
63. See id.
64. See id.
65. See AQUINAS, supra note 4, at pt. I-II, q. 95, art. 1 (setting forth Aquinas's view and addressing the question "Was it useful for laws to be framed by men?"); see also id. at pt. I-II, q. 96, art. 5 (discussing the question "Whether all are subject to the law?").
66. See FINNIS, supra note 10, at 35-37 (explaining Aquinas's position); FINNIS, supra note 18, at 28 (same). Consistent with Aquinas's legal theory (and Aristotle's thoughts in ARISTOTLE, NICOMACHEAN ETHICS bk. 5, ch. 7 (Terence Irwin trans., Hackett Pub. Co. 1985)), contemporary analytical jurisprudence has emphasized and valuably explored the importance of law in providing authoritative and, thus, binding solutions to problems of coordinating human behavior for the sake of the common good. See generally EDNA ULLMAN-MARGALIT, THE EMERGENCE OF NORMS (1977). For a summary of some important contemporary work in this area, with particular attention to the question of a prima facie (defeasible) moral obligation to obey law, see John Finnis, Law as Co-ordination, 2 RATIO JURIS 97 (1989).
67. See FINNIS, supra note 10, at 35-37 (explaining Aquinas's position); FINNIS, supra note 18, at 28 (same). Consistent with Aquinas's legal theory (and Aristotle's thoughts in ARISTOTLE, NICOMACHEAN ETHICS bk. 5, ch. 7 (Terence Irwin trans., Hackett Pub. Co. 1985)), contemporary analytical jurisprudence has emphasized and valuably explored the importance of law in providing authoritative and, thus, binding solutions to problems of coordinating human behavior for the sake of the common good. See generally EDNA ULLMAN-MARGALIT, THE EMERGENCE OF NORMS (1977). For a summary of some important contemporary work in this area, with particular attention to the question of a prima facie (defeasible) moral obligation to obey law, see John Finnis, Law as Co-ordination, 2 RATIO JURIS 97 (1989).
68. See AQUINAS, supra note 4, at pt. I-II, q. 96, art. 4; FINNIS, supra note 10, at 248, 265.
69. See AQUINAS, supra note 4, at pt. I-II, q. 95, art. 2.
70. See id.
71. See id. On Aquinas's theory of determinatio, see FINNIS, supra note 10, at 266-74, FINNIS, supra note 18, at 281-90, 294-96, and Robert P. George, Natural Law and Positive Law, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 321, 327-30 (Robert P. George ed., 1996).
72. See AQUINAS, supra note 4, at pt. I-II, q. 104, art. 1.
73. FINNIS, supra note 10, at 267 (footnote omitted).
74. I have had occasion elsewhere to explain the point as follows: It is meaningful and correct to say that the legislator (including the judge to the extent that the judge in the jurisdiction in question exercises a measure of law-creating power) makes the natural law effective for his community by deriving the positive law from the natural law. The natural law itself requires that such a derivation be accomplished and that someone (or a group or institution) be authorized to accomplish it. George, supra note 67, at 329-30. 71 AQUINAS, supra note 4, at pt. I-II, q. 95, art. 2; see also FINNIS, supra note 10, at 309 & n.69 (citing THOMAS AQUINAS, SUMMA CONTRA GENTILES bk. 3, eh. 97 (Vernon J. Bourke trans., Univ. of Notre Dame Press 1975)).
75. KELSEN, supra note 1. The remaining sections (four through six) of Kelsen's essay focus mainly on problems of state power and private property. He is particularly concerned with post-Grotian thought, especially that of Locke, Comte, Spencer, Hegel, and Marx. He claims that "the most outstanding champions of natural law, from Grotius to Kant, have done their best to prove that private property is a sacred right conferred by divine nature upon man." Id. at 153. While some of the issues he raises could fruitfully be explored in light of Aquinas's teachings, I shall not conduct that exploration in the present Essay. For a sound exposition of the Thomistic natural law doctrine of property, see Joseph M. Boyle, Jr., Natural Law, Ownership, and the World's Natural Resources, 23 J. VALUE INQUIRY 191 (1989).
76. KELSEN, supra note 1, at 144.
77. Id. at 145.
78. Id.
79. Id. at 148 (emphasis added).
80. AQUINAS, supra note 4, at pt. I-II, q. 96, art. 4 (quoting AUGUSTINE, DE LIBERO ARBITRIO bk. 1, ch. 5 (Francis E. Tourscher trans., The Peter Reilly Co. 1937) (1524)).
81. For example, Arthur C. Danto flatly ascribes to "the Thomistic defenders of natural law" the belief that "there cannot be an unjust law." Arthur C. Danto, Human Nature and Natural Law, in LAW AND PHILOSOPHY 187 (Sidney Hook ed., 1964);
82. see also H.L.A. HART, THE CONCEPT OF LAW 205-06 (1961).
83. KELSEN, supra note 1, at 144.
84. See FINNIS, supra note 18, at 11-19; HART, supra note 78, at 59-60, 86-88, 95-96, 113, 197, 226; JOSEPH RAZ, PRACTICAL REASON AND NORMS 171, 177 (2d ed. 1990).
85. See, e.g., AQUINAS, supra note 4, at pt. I-II, q. 96, art. 4 (discussing the ways in which a law may be unjust).
86. See id.
87. Id.
88. See id. Note, however, that according to Aquinas one may never obey a law requiring one to do something unjust or otherwise morally wrong, and sometimes disobedience is required to avoid causing (or contributing to) demoralization or disorder. See id. For issues relevant to the translation of Aquinas's phrase "scandalum vel turbatio," see FINNIS, supra note 10, at 223 n.23, 273 n.112, 274 n.d.
89. See AQUINAS, supra note 4, at pt. II-II, q. 60, art. 5.
90. See id.
91. See generally HART, supra note 78.
92. This criticism of Hart (and Raz) is carefully developed by Finnis. See FINNIS, supra note 18, at 12-18. On Hart's misinterpretation of Aquinas on these matters, see id. at 351-66.
93. THOMAS AQUINAS, ON KINGSHIP TO THE KING OF CYPRUS (Gerald B. Phelan trans., 1949).
94. See, e.g., I.T. Eschmann, St. Thomas Aquinas on the Two Powers, 20 MEDIAEVAL STUDIES 177 (1958).
95. FINNIS, supra note 10, at 288; see also id. at 228, 254 n.d.
96. See AQUINAS, supra note 4, at pt. II-II, q. 42, art. 2.
97. See id. at pt. I-II, q. 105, art. 1. Note Aquinas's claim that tyrants "prey[] on their subjects" and rule them "as though they were . . . slaves." Id.
98. See FINNIS, supra note 10, at 289-90.
99. See 2 AQUINAS, supra note 7, at d. 44, q. 2, art. 2.
100. On the distinction between usurping tyrants and legitimate rulers who degenerate into tyranny, see FINNIS, supra note 10, at 289-90 and the sources cited therein. 97 Id. at 290 (citing AQUINAS, supra note 4, at pt. II-II, q. 42, art. 2, and id. at pt. II-II, q. 104, art. 6).
101. See AQUINAS, supra note 4, at pt. II-II, q. 42, art. 2.
102. KELSEN, supra note 1, at 148.
103. Id.
104. See AQUINAS, supra note 4, at pt. I-II, q. 92, art. 1.
105. Id.