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Natural Law as Theoretical Anthropology

The transition from common sense to theory occurs as a differentiation in consciousness when the same reality is attended to differently. As a result, the symbolization of that reality changes, as does the control of meaning and the corresponding account of objectivity. Rather than description, theory offers explanations; rather than the concrete, theory pivots between the concrete and the abstract; rather than bodies, theory deals with things. Such differentiation can be noted in intellectual history, but also in our own consciousness, as both persons and communities alternate between common sense and theory as their needs and interests demand.

Just as common sense underlies an account of nature and natural law, so too does theory. In this chapter I explore natural law in its theoretical mode, although theoretical articulations are so prevalent that they function as something like the default, as natural law per se, and can make a strong case to best represent and continue the classical natural law tradition, especially in its Aristotelian-Thomistic trajectory. A textbook on natural law, for instance, will very likely present the theoretical mode, perhaps why the usual Protestant objections generally respond to that account. Given its prevalence, I offer nothing like an exhaustive history but only a taxonomy, an account of types, claiming that classical natural law operates in the theoretical mode of meaning in its heuristic and control of meaning. Obviously this leaves out a good deal that is interesting in the various historical figures and proponents, but my claim is a metatheoretical one about how the classical tradition conceives of objectivity, knowledge, reality, and meaning.

From Common Sense to Theory

If common sense can be summarized as (1) intelligence organized toward experience and practical life, (2) with intelligent achievements promulgated through community and convention, (3) and with an epistemology and metaphysics of body, then theory differentiates itself at each point, for as our intellects follow different exigencies of questioning, so too do differing modes of meaning emerge.

Theory as Meaning

For an infant, or a kitten, the world consists entirely of bodies, there being nothing other than bodies in their conscious grasp or intention; moreover, the bodies in their conation are generally directly in front of them, present at that moment. The infant cries when the bottle drops or a parent leaves the room because those comforting bodies no longer exist for the infant. In time, the baby grasps that the bottle has not gone out of existence but is just on the floor, so she looks down and points; her father still exists on the other side of the door or behind the hands covering his face, and peek-a-boo becomes a game of delight. Still, the world contains bodies and only bodies, even those no longer immediately present: “It is the world of what is felt, touched, grasped, sucked, seen, heard. It is a world of immediate experience, of the given as given. . . .”85 Eventually, the infant will not need to point at a bottle just dropped but says “ba-ba” or “milk,” thereby entering a new world, one mediated by meaning.

With language, we intend that which goes beyond the immediately present. Not only does language allow us to inhabit a world bequeathed from others in the tradition, but the world mediated by meaning goes beyond experience, for the meaningful is that which can be “intended in questioning,” and questioning is not a function of experience but of intelligence.86 While common sense and theory tend to encounter the same objects, “the objects are viewed from different standpoints” or exigencies of our interest.87 Common sense considers objects as they relate to us—the world of the hot water and the fast moving car—spontaneously exercising intelligence to accumulate insights in a cumulative and self-correcting process making sense of the world, particularly as we live and act in that world. Insights are spontaneously communicated to ourselves and others in the non-systematic, descriptive terms of ordinary language concerned more with accomplishing our purposes than of explaining the essence of things. For the meaning of common sense, the Socratic queries into the universal nature of moral properties, or the Aristotelian distinctions between formal and material cause, or the mathematical understandings of mass or thermodynamics are just simply “not objects.”88

Theory as Invariance

When one moves beyond experience into the world of theoretical meaning, sense data is related not to us but to other data (the periodic table with its atomic numbers and weights, for instance) with “no immediate relation to us, to our sensible apprehensions.”89 Explanatory science often goes beyond what we sense, even beyond what we can imagine, which is disorienting to common sense—“What do you mean there might be 5, 8, 10, or 26 dimensions, or even more? How is that possible?” In moving into the relations of data, the theorist “builds up a world that is entirely different from the world of common sense, and he does so because of his pursuit of an ideal of which knowledge is universal, in which it is so exactly formulated that any strict logical deductions from his statements will also be found to be true.”90

This tells us something quite important about theory in its classical structure, namely its anticipation of invariance, necessity, and universality. Recall that in pursuing an heuristic ideal, the unknown x anticipates answers of a certain kind.91 Common sense thinks it understands when it can point, manipulate successfully, and use common language well. But physics doesn’t think this, judging instead that “laws are reached by eliminating the relations of things to the senses of observers and by arriving at relations between the things . . . then there exists . . . the affirmation that principles and laws are the same for all observers because they lie simply and completely outside the range of observational activities.”92 In other words, theory, at least in its classical form, expects to find intelligibility as universal, invariant, and necessary, as that which cannot be otherwise than it is. It expects to find laws, as in classical laws of physics. The contingent is not fully intelligible, since we possess properly scientific knowledge, “as opposed to knowing it in the accidental way in which the sophist knows, when we think that we know the cause on which the fact depends, as the cause of that fact and of no other, and, further, that the fact could not be other than it is. . . . the proper object of unqualified scientific knowledge is something which cannot be other than it is.”93 Further, properly scientific demonstration “must rest on necessary basic truths; for the object of scientific knowledge cannot be other than it is,” and consequently, the first premises must be basic, or self-evident, and the reasoning from them logically valid deductions, which would be necessarily true.94

Take an example from the Theatetus by Plato. In response to a query about the meaning of knowledge, Theatetus describes a recent conversation with his teacher, Theodorus, on the nature of mathematical squares. Beginning with instances, Theodorus proceeded sequentially to work through the numbers, “the power of 3 square feet and the power of 5 square feet . . . and he went on in this way, taking each case in turn till he came to the power of 17 square feet; there for some reason he stopped. So the idea occurred to us that, since the powers were turning out to be unlimited in number, we might try to collect the powers in question under one term, which would apply to them all.”95 Lonergan provides a similar example in the following series, “1+1=2; 2+1=3; 3+1=4; etc., etc., etc. . . .” suggesting that the most important aspect in the example is “etc., etc., etc. . . .” for “. . .” indicates that the process can go on indefinitely under a rule or formula.96 Like Theatetus, one can stop, realize that the instances are potentially unlimited in number, and provide an explanatory formula rather than working through each and every instance. In so doing, one has grasped necessity in the relations, what must be present for the relations to be intelligible rather than accidental, and the “single term” or formula articulates what is necessarily present in the intelligibility of each instance covered by the formula, precisely the anticipation of the Socratic method’s search for a definition including each relevant instance while excluding each instance of a different kind.

Theory and the Real

Although articulated differently, both Plato and Aristotle consider the formal necessity grasped in theory to be real and objectively knowable, and thus metaphysics became the master science. In common sense, the real was envisioned as bodies, as the “already out there now real,” or presence, what could be seen or touched, because common sense begins with an anticipation of what exists in relation to me and my sensation. Since concern is for that which exists in relation to me, I expect that what exists is that which exists over and against me, and being is modeled after bodies. With theory, being is whatever is intended as meaningful, and only the invariant and necessary is fully meaningful:

Metaphysics is said to be the most abstract and the most universal of sciences. All science must have some universality and therefore must be to some extent abstract. If we consider things with all their individual differences, there is no general truth that will apply to them all and no general law or principle that can be derived from them. It is only by leaving out of sight the individual differences and taking what is common to many individuals that we can formulate a universal law or principle. This is what we do when we abstract. We leave out what is peculiar to the individual and take only what is common. To abstract, therefore, is to universalize what is abstracted. Now Metaphysics, having for its object to study being as such, abstracted from all conditions under which reality exists, and considers only the reality itself. Therefore the notions we derive from such consideration of reality will apply to all reality, and consequently the science of Metaphysics is most universal.97

Metaphysics is a science, and thus will follow the rules of the other sciences, just having greater extension and thus abstraction, but metaphysics follows entirely the rules implicit in theory’s anticipation of meaning.

The shaping of metaphysics by our anticipations is true not only in the definition of metaphysics itself but also in its elements. For instance, in keeping with the notions of episteme found in classical theory, where demonstrative knowledge proceeds from necessary first principles, so metaphysics is “the science of first principles” providing those “things from which all reality derives,” or ontology, as well as those “truths on which all knowledge depends,” or epistemology.98 For both studies, since metaphysics deals with the most abstract and necessary aspects, it is from metaphysics that our knowledge of the principles of both reality and knowledge are derived, “on which the validity of all our knowledge depends.”99

Theory as Law

Within classical theory, a law is “an unchanging correlation among changing quantities that supplies . . . a standard for measuring. . . . A classical norm was assumed to be a universal necessary standard for judging all cases without exception.”100 And in looking for this, one “is concerned with an immanent intelligibility in the thing, event of process,” meaning that one heuristically anticipates necessity to be discovered in the contingency and variability of the concrete, by abstracting from the contingency to discover intelligibility, which is necessary, unchanging, and explanatory.101 Abstracting from contingency means abstracting from the individual, even abstracting from the world of bodies to the non-imaginable world of definitions, as when in geometry reference is made to points (which are not dots and cannot be imagined) or when the formula for calculating velocity in a free fall assumes the ideal of a vacuum (which is not to be found in this or that actual instance of a falling ball). The necessity is an abstraction, albeit an anticipated one, from which to attain the status of law.

Note the anticipation for data to “conform to some law.” The heuristic shapes what we anticipate, and thus how we interpret what we find, in an interesting pivoting of discovery and anticipation. We anticipate intelligibility under a certain heuristic, thereby discovering such intelligibility in the data given to us. For instance, Theatetus mentions that Theodorus began to teach about squares with the assistance of diagrams, namely, that which could be viewed and imagined, so to arrive at the formula after the intelligible principle was discovered through the use of the data supplied by the diagrams. But many people could look at the diagrams and find no intelligibility; only those anticipating finding something, only those looking for something, some unknown x of a certain type find x. Once found, the formula governs the anticipation of how additional instances will be understood, even before those instances are diagramed. So our anticipation allows for discovery which provides the basis for ongoing anticipation.

While common sense uses proverbs to articulate what wisdom has found to be true for the most part, helpful rules of thumb to get you through, more often than not, classical theories tend towards abstraction in “(1) their heuristic anticipation, (2) in the experimental techniques of their discovery, (3) in their formulations, and (4) in their verification.”102 In heuristic, classical theory looks to understand the intelligibility immanent to the data, expecting also that genuine understanding could be extended to all similar data, for the “nature to be known will be the same for all data that are not significantly different.”103 Further, concrete differences of time, place, or person, are to be ignored, and the techniques of experiment are to be applicable and repeatable for all. Consequently, the language with which intelligibility is formulated must not rely upon the vagaries of particular times or places, and thus a specialized and abstract language is required. Finally, a possible grasp of intelligibility is not verified with an isolated concrete instance but by a general and large number of instances; certainly the testimony of the wise person alone is not sufficient.

We see how the heuristic shapes conceptions of law, most obviously in the sense of a scientific law of nature: Law expresses a necessary principle based upon a grasp of the intelligibility within data, and which cannot be rationally denied. Of course, the question arises as to what allows such cognition to be moral law, as opposed to just a law of how intelligibility is anticipated. What makes law normative?104 For theory, natural law looks very much like a law of nature in its structure, for the forms of thought operate within the theoretical mode of meaning.

Theoretical Natural Law—The Default

Jacques Maritain summarizes much of the classical tradition of natural law when he writes:

I am taking it for granted that there is a human nature, and that this human nature is the same in all men. . . . [P]ossessed of a nature, or an ontological structure which is a locus of intelligible necessities, man possesses ends which necessarily correspond to his essential constitution and which are the same for all. All pianos (whatever their particular type and in whatever spot they may be) have as their end the production of musical sounds. If they do not produce these sounds, they must be tuned, or discarded as worthless. But since man is endowed with intelligence and determines his own ends, it is up to him to put himself in tune with the ends necessarily demanded by his nature.105

There is a universal and essential nature, says Maritain, with teleology necessarily linked to the ontological constitution of the human, just as for “any kind of thing existing in nature, a plant, a dog, a horse, has its own natural law, that is, the normality of its functioning, the proper way in which, by reason of its specific structure and specific ends, it should achieve fullness of being either in its growth or in its behavior.”106 Consequently, the “first basic element to be recognized in natural law, is, then, the ontological element.”107

For Maritain, and indeed for many others, all claiming the support of Aquinas, natural law obviously depends upon metaphysics of the classical type, where an essential constitution, universally and necessarily determinative of the nature and ends of every member of a species, provides the grounding by which to determine the proper function, and thus also the improper function, of an entity. Further, since natural law is written in nature in a necessary way, human knowledge of its basic principle is self-evident and the law is the “ensemble of things to do and not to do which follow therefrom in a necessary fashion.”108 Certainly it is the case that “every sort of error and deviation is possible,” that “our nature is coarse, and that innumerable accidents can corrupt our judgment,” but this shows only that “our sight is weak,” and “proves nothing against natural law, any more than a mistake in addition proves anything against arithmetic. . . .”109

Natural law requires necessity and invariance, but in a world of flux this is found only in the domain of episteme, and thus turning to the concrete human person is insufficient. Instead, natural law begins with a metaphysics of the person, with the universal, abstract, and unchanging. Heinrich Rommen puts it thus:

The idea of natural law obtains general acceptance only in the periods when metaphysics, queen of the sciences, is dominant. It recedes or suffers an eclipse, on the other hand, when being . . . and oughtness, morality and law, are separated. . . . The natural law, consequently, depends on the science of being, on metaphysics. Hence every attempt to establish the natural law must start from the fundamental relation of being and oughtness, of the real and the good. Since the establishment of the natural law further depends upon the doctrine of man’s nature, this human element has also to be studied. . . .110

Natural law depends upon a knowledge of being, of the being of the human person, and is derived from a theoretical anthropology whereby we first know what sort of beings we are, and only subsequently know what goods are proper to us, what goods we are obligated to pursue: “being and oughtness must in the final analysis coincide.”111

Ontological and Epistemological Realism

By metaphysics, Rommen means the Aristotelian-Thomistic synthesis, committed to both ontological and epistemological realism, since natural law is “possible only on the basis of a true knowledge of the essences of things, for therein lies its ontological support.”112 Knowing essence begins with sense perception whereby the form of the thing is given to the intellect through the sensible and intelligible species. While the mode of the form’s existence changes—existing in reality in the entity but intentionally in the sensation and imagination—the actual intelligibility of the object is made present in sense and imagination or we could never understand the entity as it is. When we understand, our intellects are in-formed with the very same intelligibility possessed by the entity, the so-called identity theory of knowledge where the intellect becomes the object, possible since sensation and imagination possess the form and “present” it to the intellect.113 The senses “are the gateway through which things or reality pass, according to the mode of the intellect, into the latter’s immaterial possession.”114 This epistemological realism suggests that “things themselves are the cause and measure of our knowledge,” for the intellect is moved by, informed by, and ultimately measured against the form of the thing itself: “At first, the intellect is passive. Reality exists prior to the intellect. The mental image is a copy whose original is the real.”115 A coherent understanding and a true judgment occur when the intellect corresponds to the form, when it matches up to the measure of the very nature of the concrete and sensible thing. Epistemological realism in which reality exists over and against the intellect, but which sensation bridges without remainder or interference, is a necessary condition of natural law, for unless we access essence as things are, we could never determine the goods proper to the essence.116

Sensation, while necessary, concerns individuals, whereas understanding, in keeping with the theoretical mode, is abstract, universal, and about that which cannot be otherwise. The concrete individuals of sensation, however, are never abstract, never universal, and always admit of contingency, so while our understanding is identical to the original, understanding, unlike sensation, concerns the universal essence which makes the thing the sort of thing it is. When I know this tree, or that human, I do not understand them as this tree or that human, but rather understand the essence whereby trees are trees and humans are humans. Understanding is of the universal, abstracted from the material accidents rendering tree-ness into this or that tree, this or that individual, and which makes Socrates distinct from Plato. Still, when I know Socrates, I also know Plato since their essence is the same: “The object of rational knowledge or cognition is therefore not the particular or the individual as such; this the senses lay hold of. The object of cognition . . . is what the thing is: the essence of the thing which lies hidden in the core of phenomena as an idea in every thing of the same kind; in a word, the form.”117

Stressing the point, and demonstrating quite clearly the theoretical mode, Rommen continues:

Sense perception grasps only the particularity of the existent being, of the individual thing, as e.g., this man or this concrete state. But cognition is founded on the perception of the universal, of that which is in all things of the same kind as their quiddity or essence. The thing is that which the abstract concept of the thing, the object of intellectual knowledge, represents, signifies, means; and this object of intellectual knowledge is really in the thing.118

Note his language: (1) the thing is understood in abstraction, without reference to the contingent particularities, (2) the thing understood is the object of intellectual knowledge, or that which is intended or sought (a heuristic anticipation), and (3) it is only as an abstract object intended by intellect that we have representation, significance, or meaning. Meaning obtains when we have abstraction to the necessary and universal present in the individual, when we have grasped, in the concrete, that which cannot be otherwise.

Nature as Principle of Motion

For natural law, the first task is metaphysical, grasping essence or form, since in Aristotelian metaphysics a grasp of the form is also a grasp of its final cause or telos. When explaining motion, Aristotle distinguishes the contingent and changeable matter from the “inner, enduring core, the form,” with the form serving as the principle of act causing self-motion or self-change of the thing.119 This is particularly evident in natural entities, those which possess their own nature from themselves and are not given it by an artist or craftsperson, for nature is an internal source of motion or change, an entelechy, whereby the form “unfolds itself in the matter.”120

Since a natural substance is self-moved and self-governed, the “unfolding” follows the intelligible structure immanent in form itself, and since everything which is seeks its own act and perfection—perfection meaning the completeness proper to the form—natural entities seek their own end. But the end or perfection, the finality of a substance, is its goodness, and thus form is intrinsically linked to final cause; the final cause is nothing other than the form having become fully itself, having accomplished its principle of unfolding until it has become its own essence. God, having no potency, demonstrates this principle most perfectly, for he is pure act—purely Himself without possibility of development or change—and thus is also his own perfection and goodness. All else is good insofar as, in an analogous matter, it becomes like God, or insofar as it becomes fully actualized in the form which it is. Goodness is the being of the thing; goodness is being, and being is goodness. Teleology is the unity of being and oughtness.121

According to Anthony Lisska, the metaphysics necessary for natural law entails accepting essential properties as “dispositional properties” with a corresponding teleology.122 Dispositional properties are “potentially directed towards a specific development or ‘end,’” they are the object’s capacity to “do something.”123 The “something” is always a specific end, or act, “which is the fulfillment or completion of the potency.”124 Teleology is meaningful only in light of the relationship between the dispositional property, which is a real potency of the object, and the end, which is the actualization immanent to the dispositional property. As immanent, the “ends appropriate to human nature are built into the very nature or essence which determines a human person,” and, further, are not non-moral goods understood as utility.125

Dispositional properties, which make up a thing’s essence, are not static like a category, whatever our tendency to conceive of essence as rigid and closed, something like the properties which define a triangle. Rather, essential properties are more organic, something like a plant which has a form, and thereby develops and changes because of the immanent disposition of that form, although certainly the development is structured and directional.126 Thus, in the famous article 94. 2 from the Summa Theologiae where Thomas gives his most detailed account of the principles of the natural law, he is doing nothing more than identifying the structure of our dispositional properties: (1) Dispositions towards life, including continuation of existence, nutrition, and growth; (2) Dispositions towards animal sensation, including sense experience and offspring; and (3) Dispositions towards rationality, including sociality and understanding.127 Whatever these dispositions have as their accomplishment or terminus, this is the human good.

Good and evil are defined by reference to the dispositional properties, for the good is the “harmonious completion of the dispositional properties,” while the “hindering of any developing process” hinders the attainment of the act/good of the disposition, and thus also hinders or denies “the possibility of attaining human well-being.”128 Acts are wrong, then, not directly because a law-maker declares as such, even if that law-maker is God, but because “an immoral act prevents the self-actualization of human beings,” or hinders the harmonious attainment of the disposed ends and the well-being constituted by that attainment.129 In keeping with the earlier claims of the priority of ontology, it is clear that the ground of normativity is entirely shaped by metaphysics.

The notion of end is a prerequisite for understanding “good,” for the good of an entity is nothing other than the finality, or full actualization, of the dispositional properties. Good, then, is coterminous with being, and a the good of the thing cannot be defined except in relation to the form of the thing. To say the same thing, but with a nod to metaethics, “moral theory is dependent upon the metaphysical theory.”130 If the metaphysics fails, so too does the moral account, and a moral account which operated antecedently to the metaphysics would be either arbitrary or impossible. Thus, not only does intellect rightly govern the will in action, but theoretical knowledge, operating as a metaphysics of the person or theoretical anthropology, is prior to ethics. First we provide an account of human nature, and only then can we do ethics: “ontology is a necessary presupposition for . . . moral theory.”131 And not just any ontology will do, but only a metaphysics of essence, that is, of dispositional properties.

Conclusion

Such oughtness may seem aridly metaphysical, hardly the demand of responsibility we sense governs our agency. We are free, after all, self-governed agents and a merely instinctual pursuit of our perfection seems inadequate to human dignity, precisely why Plato rejects Callicles’s understanding of natural inclination. Rommen agrees, noting that the statement “we are free,” is an ontological declaration of our nature. There is an ordering principle grasped by intellect, and while this governs animals in iron-like rigidity, for beings such as us, “endowed with reason and free will,” those principles of necessary order obligate without thereby exerting efficient causality.132 It is our nature, our essence, to be free, and so morality exists insofar as the “order of being confronting the intelligence becomes the order of oughtness for the will.”133 The order is objective, it exists independently of our reason, but yet we must choose to will and follow that objective order.

Still, though, the metaphysics is first. We discover form in knowledge, form presents the goodness of being, the drive to the good proper to the form, and it is this very good which the human as free is called to bring about. Practical reason, reason insofar as we bring about the truth of our being through our action, depends upon theoretical reason, for “moral philosophy, the science of moral action, is an extension of metaphysics, the science of being. . . . First the theoretical reason knows and . . . truth thereupon appears to practical reason as truth to be accomplished through the will.”134 Metaphysics, or a theoretical grasp of the real, is the basis upon which the natural law depends; the natural law derives from metaphysics, from theory. Law, insofar as it is practical or moral, arises from being, and is nothing more than the known truth which is to be brought about through action. Law tells us what we need to do, or not do, so as to live in keeping with the truth of our being, but we must know this being first, and only then can we act in keeping with the same law which being is for us. Having known being is to know oughtness, for the “supreme principle of oughtness is simply this: Become your essential being.”135

From the perspective of interiority, the perspective of the acting person, however, the default model misses the point somewhat, for natural law is not derived from metaphysics—natural law is entirely underived. That discussion will wait, for before turning to interiority, I examine the “Protestant Prejudice” against natural law, arguing that the usual objections refer to the default of theoretical mode. When we move away from theory to interiority, the objections dissolve as well.

85. Lonergan, Method, 76.

86. Ibid., 77.

87. Ibid., 81.

88. Ibid., 82.

89. Lonergan, Understanding and Being, 85–86.

90. Ibid., 86. Since I’m discussing classical natural law, I will here limit the discussion of theory to what Lonergan calls the classical heuristic structures, leaving out statistical or empirical structures for the moment. While doing so oversimplifies his thought, it allows for a pedagogical simplicity; other heuristic forms will come up in later chapters. For a good discussion, see Flanagan, Quest for Self Knowledge, 95–107.

91. Ibid., 64.

92. Ibid., 65.

93. Aristotle, Posterior Analytics, I.2 71b 10–15 in Basic Works of Aristotle.

94. Ibid., I.6 74b 5–10.

95. Plato, Theatetus, 147d.

96. Lonergan, Insight, 38.

97. McCormick, Scholastic Metaphysics, 6.

98. Ibid.

99. Ibid., 6–7. McCormick continues: “Metaphysics is a first requirement for a true theory of knowledge.”

100. Flanagan, Quest for Self Knowledge, 98.

101. Lonergan, Understanding and Being, 60–61.

102. Lonergan, Insight, 113.

103. Ibid.

104. Hittinger, The First Grace, 39.

105. Maritain, Natural Law, 27.

106. Ibid., 28.

107. Ibid., 29.

108. Ibid., 33.

109. Ibid., 32.

110. Rommen, The Natural Law, 141.

111. Ibid., 143.

112. Ibid.

113. Ibid., 148.

114. Ibid., 144.

115. Ibid.

116. Gilson, Methodical Realism, 127–44.

117. Rommen, The Natural Law, 145–46.