Charles E. Rice (1931-2015), a Thomist philosopher and professor of law at Notre Dame University, was a consistent conservative on matters political and theological. In 1993 he wrote a book that, if it had been published in 1963, might have had greater impact on stemming the rising tide of moral relativism and the nearly total loss of America’s moral compass. His book might at least have ignited a firestorm of debate that was badly needed but never really occurred. That book, 50 Questions on the Natural Law: What It Is and Why We Need It, is a frontal assault on what Rice called a civilization in crisis since the so-called Enlightenment era of three centuries ago. The Enlightenment, according to Rice, initiated a progressive movement of “sterile individualism” that has degenerated to the rank paganism of our time. We might as well admit it: we live in a post-Christian culture. The reasons are penetratingly explored in Rice’s brilliant 400 page tome.
The Theory of Natural Law
Early on Rice identifies the most prominent of natural law advocates in ancient history, notably Aristotle for the Greeks and Cicero for the Romans. According to Aristotle, “there is in nature a common principle of the just and the unjust that all people in some way discern, even if they have no association or commerce with each other.” According to Cicero, “What is right and true is also eternal, and does not begin or end with statutes.” St. Paul in his epistle to the Romans makes clear the first Christian statement of natural law: “Pagans, who never heard of the Law but are led by reason to do what the Law commands, may not actually ‘possess’ the Law, but they can be said to ‘be’ the Law. They can point to the substance of the Law engraved on their hearts–they can call a witness, that is, their own conscience–they have accusation and defense, that is, their own inner mental dialogue” (Romans 2:14-15).
Leaping forward to the 13th century, Thomas Aquinas adds an insight phrased in a way that clarifies what Aristotle and Cicero had said. By natural law is meant that “(g)ood is to be done and pursued, and evil is to be avoided.” Aquinas likewise emphasizes the rational nature of the natural law: so far as our conduct is concerned we may discern the natural law by the light of reason. Only by submitting ourselves to the temptation to sin can we frustrate the natural law through sin. Speaking of sodomy, for example, Aquinas says: “In matters of action it is most grave and shameful to act against things as determined by nature. Therefore, since by the unnatural vices man transgresses that which has been determined by nature with regard to the use of venereal actions, it follows that in this matter this sin is the gravest of all. After it comes incest, which … is contrary to the natural respect we owe to people related to us.”
Interestingly, the most glorious document in defense of human freedom ever written was the American Declaration of Independence. Surely what Thomas Jefferson was affirming is what Aquinas had said about natural law. “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It is clear from these words that human rights are not given by men to other men. They are given by God to all, and they are rooted in natural law which has its origin in God.
What we know: Synderesis, or the Innate Awareness of Natural Law
The intellect naturally knows good and evil when it sees it, and only by the will directing the intellect away from rationality can anyone excuse or justify the flaunting of Natural Law which originates in the Divine Law. Such a disregard for Natural Law, combined with supposed ignorance of it, was evidenced by members of Congress when Clarence Thomas was declaring his views prior to his confirmation to the Supreme Court. Thomas had attended a Catholic college and had imbibed the Thomistic principle of natural law that had dominated ethical philosophies at least until the 18th century when Voltaire and Rousseau had laid the foundations for modern moral relativism. But very few of the solons of Congress had attended a Catholic college, or had ever heard of natural law ethics, and were therefore appalled at the notion that traditional Catholic ethics might be governing Supreme Court decisions.
But, as shown above, natural law is not specifically Catholic, since it had been well articulated centuries before St. Paul and had been a moral standard common to all civilizations since the dawn of human history. This fact alone shows how much degeneration of ethical standards had infected the American lawmakers who were grilling Clarence Thomas. On the political horizon, even before Thomas could retire from the Supreme Court, would come the infamously ridiculous Supreme Court decision advocating same-sex marriage as a Constitutional right. The fact that this decision was rendered with six Catholics on the Supreme Court demonstrates how radically, even among Catholic solons, natural law has come to be regarded as medieval and unworthy. Thomas, to his credit, was faithful to natural law ethics and was one of only four Catholic Justices to oppose legalizing same-sex marriage.
Modern Opposition to Natural Law
The principle objections to natural law morality in modern times are most likely rooted in the downward trajectory of the belief in the existence of God. It stands to reason with some philosophers that if there is no Divine Intelligence behind creation, there is no need to assert the existence of a natural order imposed on the universe from outside it. Therefore, if all laws of physics are simply imposed on us by the accident of how those laws came to arise in nature, likewise it follows that the laws of human behavior are imposed upon humans by themselves according to the accident of how these laws came to be. In other words, these laws are not designed by a supernatural Being, but rather they are positive (positive laws are those that are enacted by legislators according to whatever reasons and devices are selected to enact them). Thus some human laws will be utilitarian, others will be pragmatic, others will be hedonistic, others will be altruistic, etc. By this theory, positive law (as opposed to natural law) will be decided by whichever camp of lawmakers dominates at the time. Either a monarch will decide, or a dictator, or a democracy, or a republic, or a mob. Either Christians will decide, or Atheists, or Muslims, or Hedonists, or any other party will create the “positive” laws to reflect their values. The downward trajectory into hedonistic morals is reflected in a recent scientific survey suggesting people are more likely to consider good sex and adequate sleep, rather than a relationship with God, as the key to their happiness and well-being. Every other sentient, but non-rational, species would likely concur that good sex and adequate sleep are the summum bonum of life. Let us note again the secularist reduction ad absurdum of humanity to its purely animal nature.
Few will contest that the modern world has succumbed to moral relativism, which is the view that there is no lasting and objective standard by which to decide right and wrong. The belief in God, and the belief that God has revealed objective moral standards for human conduct, has been effectively obliterated by the absolute separation of Church and State. Ironically, the rule of positive law then becomes the absolute mechanism by which morality is to be decided. There is no getting around it: one absolute is replaced by another. Moral relativism breeds its own absolutes, or, as Pope Benedict XVI put it, we get the dictatorship of relativism. God will decide nothing. The people absolutely will decide everything. But if the people cannot agree on what shall be decided, the outcome will be determined by the majority of their representatives in government. Between the years 1932-1945, that majority in Germany was the Nazi Party, the very party that today we regard as the greatest offender of natural rights and natural laws in modern times. Note: the Nazis were, despite the denial of its leaders, a godless regime. The same could be said today for the godless regime of North Korea. It is a dictatorship of one person who rules everyone else with an iron fist. His word, not God’s word, is law. The current dictator of North Korea is the perfect example of positive law run amok.
According to Rice, there is no necessary conflict between natural law and positive (human) law. Positive laws are, or ought to be, rooted in natural law. For example, if we are mandated by nature to do good and avoid evil, it follows that positive laws must mirror the natural law mandate. Positive laws, such as traffic laws to take the simplest example, must mirror the natural law we all know in our hearts, which is … thou shalt not kill. There is nothing relative about that law. One absolutely must obey this law in the context of moving about in traffic. Those who do not obey this law, those who speed or drive under some debilitating influence, do so because they have perversely defied the natural law mandate to do no evil.
But what if there happened to be a conflict between natural law and positive law? Would we be more morally obliged to obey the positive law or the natural law? Obviously for Aquinas, positive law is supposed to be consistent with natural law, and natural law is the product of divine law. However, if the chain is broken, it will be broken at the point of positive law, whereby men who do not act reasonably are said to be unjust. Citing both Aquinas and Augustine, Rice points out that “a law that is not just seems to be no law at all.” A case in point would be if physicians were required to perform abortions. If there were such a law, the physician would be well within his right to refuse to comply because abortions clearly violate both natural and divine law. If the governing authority is corrupt and tyrannical, the physician might well be punished for refusal to comply; that test of his courage would prove that the physician is or is not morally righteous.
Morality and Law
Another question raised by Rice is whether it is possible to legislate morality. Where does the State get its authority to impose moral legislation on individual citizens? This question relates back to the modern controversy between conservatives and libertarians. Conservatism generally is dedicated to securing the common good. Libertarianism concerns itself principally with individual rights. The two are bound to clash. Whereas conservatives and libertarians are wary of the increasing power of the State (a fear that modern liberals never seem to share as long as the State is controlled by liberals), it cannot be denied that the State must be endowed with powers to protect the common good (again think traffic laws). It is an aspect of natural law that group morality must exist or there will be no moral glue to hold society together. Traditionally, other than government authority, religion has supplied the moral glue. Without religion, where is the moral glue to be found? The case can certainly be made that it originates in our common sense understanding of natural law which tends to reflect religious morality. Laws against homicide, for example, mirror the religious injunction “Thou shalt not kill.”
“All human law enforces a morality of some sort,” says Rice. Of course it is impossible for human law to govern all aspects of human behavior. For it to do so government would have to micro-manage every aspect of our lives, and this would be intolerable. Therefore, as Aquinas insists, the positive law should confine itself to those aspects of morality that effect the common good. Take civil rights, for example. Until the 1950s the civil rights of blacks in the United States were woefully protected by positive law. In fact, there was obvious evidence of unjust laws operating, segregation for example. Now the positive laws came to be changed during that decade, not so much for the reason of common sense, but rather for a religious principle espoused by Jesus 2,000 years ago. “Do unto others as you would have them do unto you.” This religious doctrine, which is both divine law and natural law, was preached by the Reverend Martin Luther King, Jr. It had great effect on the laws of the land with respect to segregation and civil rights. Something comparable to the modern civil rights movement happened a hundred years earlier when religious groups, following the same injunction of Jesus, sponsored the Underground Railroad as a device for securing the freedom of slaves and transporting them to Free States. Thus we can see the gross miscalculation of libertarians, their notion that positive law cannot or should not have roots in natural law and/or divine law.
Judges and Law
Another challenging question Rice entertains regarding the natural law is whether anyone can seriously expect judges to rule on a decision using natural law as a standard of judgment. Well, why not, if natural law is founded upon reason and common sense? Are we not by nature reasoning beings? Is criminal conduct not regarded as unreasonable conduct that deserves to be judged using the common and reasonable sense of what is proper to our human nature? Those who are steeped in sin and criminal behavior often think their vicious habit are natural to them, and they are only following the law of their own nature. Would any reasoning judge not regard vicious criminals who appear before him as acting outside the pale of acceptable human behaviour? It is true that positive laws must be on the books to get an indictment, but what positive law was needed to judge as guilty the Nazi monsters subjected to indictment at the Nuremberg Trials in Germany after World War II? The defense of the war criminals at that trial was that they were only following orders. In other words, they were acting according to human laws, positive laws. Yes, such human laws should have, but did not, conform to the natural moral law. Hardly anyone disputes that all human law (such as laws against homicide or slavery) should be rooted in natural moral law. Those who do dispute, want to redefine what our human nature really is, so that moral outrages they espouse can become acceptable. Certainly the Supreme Court decision validating abortion and same-sex marriage are instances of the same. Reversing the point of the first sentence in this paragraph, who gave judges the right to redefine our human nature? Is that right embedded in the Constitution?
Family and Law
The churches and people in general put great stock in the family. It is the most natural thing in the world to nurture and protect and educate our children. You could certainly say that people who do not do this are violating the natural law, not to mention the divine law. Yet today the powers that be have moved heaven and earth to jeopardize the safety and wellbeing of our children. Consider the quality of food the young consume and the rate of obesity among them. Observe the vulgar entertainments and music they are exposed to. Notice the corruption of academic standards and the deterioration of behaviour (not to mention drug use and sexual molestation) in the public schools. Regard with horror the amount of child pornography and incest documented among the young. Is it the sign of a truly decadent civilization that it kills in the mother’s womb millions of potential citizens? Perhaps all this is only noticed by people who are old enough to remember when the common sense of natural law prevailed. But it seems as though the natural order of things has been turned upside down; an unnatural and demonic order has been introduced; and we need to start worrying about how the next generation is going to treat us after they have grown up and realized, if they are ever mature enough, how horribly we have treated them.
Goodbye, Natural Law
Rice reminds us that one often hears it said, usually by those who would most like it to be true, that natural law morality is a philosophical dinosaur. Something happened in the 1950s-1960s to make that happen. A Supreme Court decision virtually kicked the Supreme Being out of the public schools. Other actions followed that, in spite of the Constitution’s guaranteed protection of religious freedom, made taboo public references to God and the Bible and Jesus Christ. Atheist groups immediately set about campaigning to have statues of Moses and the Ten Commandments removed from public sight. Petitions were signed to remove Christmas crèches from public view. Even the greeting “Merry Christmas” was to be dumped in favor of the secular “Happy Holidays.” A campaign organized by the secularists was dedicated to reinterpret Jefferson’s phrase “separation of Church and State.” It now meant that no government decisions were to be guided by religious principles, when all it originally meant was that there should be no State funded Churches. But if not by religious principles, how else are Court decisions to be guided? By the principles of agnostic and atheist philosophy? The secularists have won that battle. Anyone who was an adult during the last sixty years remembers the Court decisions that certainly were not guided by religious principles and that produced millions of butchered babies.
But hope springs eternal…
If natural law morality is not dead, it is certainly sleeping. The British agnostic Bertrand Russell warned that the United States is in grave danger of becoming a Catholic nation in 150 years. We are halfway along on Russell’s timetable. Archbishop Fulton J. Sheen retorted that if the “United States is to be Catholic, it will have to do two things more than it is doing now: it will have to begin to think, and it will have to begin to pray.”
There is yet another avenue by which we might return to natural law morality: perhaps every jurist in America, when he renders any verdict he is charged to render, should have before him Martin Luther King, Jr.’s letter from the Birmingham Jail. It reads in part: “I would agree with St. Augustine that ‘an unjust law is no law at all.’ A just law is a man-made code that squares with the moral law or the law of God…. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: ‘An unjust law is a human law that is not rooted in eternal law and natural law.’”
And so, as usual, Aquinas gets the last word.
Charles E. Rice videos can be seen on YouTube and EWTN.