Objections to the Natural Law
Today, the idea of a universal natural law faces many objections, some of those more fundamental than others. As Leo Strauss says in the introduction of Natural Right and History, “present-day American social science, as far as it is not Roman Catholic social science, is dedicated to the proposition that all men are endowed by the evolutionary process or by a mysterious fate with many kinds of urges and aspirations, but certainly with no natural right.” (Strauss, Leo. Natural Right and History. Chicago: Chicago University Press, 1953, p. 2) What was the case for American social science in 1953 holds for social science in general in 2021. I am inclined to further qualify Roman Catholic social science as the followers of St. Thomas Aquinas are dwindling in that profession as well.
Aquinas' whole natural law theory rests on two fundamental premises: the first principle of natural reasoning, which is: “The good should be done and pursued, and the bad should be avoided.” and his definition of the good as “what all things desire” (STh I-II 94.2c). We find our first objection in this very foundation. In today’s diverse and pluralistic society, it seems impossible to identify any common ultimate desire, let alone “the vision of the Divine Essence” (STh I-II 3.8c) as that ultimate desire.
Saint Thomas can make this fundamental assumption because he believes that “every being in any way existing is from God” (STh I 44.1c) and that “the divine goodness is the end of all things” (STh I 44.4c). In an increasingly atheistic or agnostic society, not many people will accept this premise.
According to Aquinas, it is the “light of natural reason, by which we discern what is good and what is bad” (ST 1-II 91.2c). But at the end of the 18th century, philosophers as Kant and Spinoza “raised a very disturbing question in many minds: why should we listen to our reason if it undermines all those beliefs necessary for the conduct of life?” (Beiser, Frederick C. The Fate of Reason: German Philosophy from Kant to Fichte. Cambridge, Mass: Harvard University Press, 1987, p. 2) The philosophers of the age of meta-criticism found that reason dictates to distrust the authority of reason itself. Today, this leads to three different objections to the natural law theory:
- There is no universal truth at all.
- There is no universal truth about morality.
- There might be some universal truth, but we have no way to gain knowledge of it.
In his lectures, Strauss calls a similar form of objections the “historical approach”: There is no universal natural law throughout history because human thought only is valid in its historical context. The right of the Roman pater familias to kill his children was just in the historical time and place, but it is unjust today. At the same time, homosexuality was a capital offence in the divided kingdoms of Israel, but it is legal today. According to Strauss, this historical approach comes in two flavours:
- The classical view accepts that nature is superior to a human convention but says that all laws are convention.
- The modern view denies this idea of nature altogether. (Strauss, Natural Right and History, pp. 9–34)
Modern social sciences, ethics and law make a distinction between judgments of fact and judgments of value. They declare themselves only to be concerned with facts and relegate decisions about values to conventions. Law students try to understand laws, their history, the original will of the lawmaker, and how to apply them to a given situation. They do not make value-judgements about the justness of a law. (Strauss, Natural Right and History, pp. 35–80)
Aquinas did anticipate many of these objections. We can find his answers to them in the Summa Theologiae. The fundamental disagreements are different, though. If the world is not created by a rational being with a rational end in mind – if it is merely a product of randomness – how can there be a universal rational law? And if there is no universal law, how can there be individual human rights?