c. fred alford narrative, nature, and the natural law from aquinas to international human rights...

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Narrative, Nature, andthe Natural Law

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Previous Books by C. Fred Alford

AFTER THE HOLOCAUST: The Book of Job, Primo Levi, and thePath to Affliction

PSYCHOLOGY AND THE NATURAL LAW OF REPARATION

RETHINKING FREEDOM: Why Freedom Has Lost Its Meaningand What Can Be Done to Save It

LEVINAS, THE FRANKFURT SCHOOL ANDPSYCHOANALYSIS

WHISTLEBLOWERS: Broken Lives and Organizational Power

THINK NO EVIL: Korean Values in the Age of Globalization

WHAT EVIL MEANS TO US

THE MAN WHO COULDN’T LIE: Essays and Stories about anAncient Quarrel between Philosophy and Poetry

GROUP PSYCHOLOGY AND POLITICAL THEORY

THE PSYCHOANALYTIC THEORY OF GREEK TRAGEDY

THE SELF IN SOCIAL THEORY: A Psychoanalytic Account of ItsConstruction in Plato, Hobbes, Locke, Rawls, and Rousseau

MELANIE KLEIN AND CRITICAL SOCIAL THEORY: AnAccount of Politics, Art, and Reason Based on Her PsychoanalyticTheory

NARCISSISM: Socrates, the Frankfurt School, and PsychoanalyticTheory

SCIENCE AND THE REVENGE OF NATURE: Marcuse andHabermas

ASHES OF THE MOON: Environment and Evil in the Amazon(a novel)

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Narrative, Nature, andthe Natural Law

From Aquinas to InternationalHuman Rights

C. Fred Alford

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NARRATIVE, NATURE, AND THE NATURAL LAW

Copyright © C. Fred Alford, 2010

All rights reserved.

First published in 2010 by PALGRAVE MACMILLAN® in theUnited States – a division of St. Martin’s Press LLC, 175 Fifth Avenue,New York, NY 10010.

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ISBN: 978–0–230–62279–1

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Alford, C. Fred.Narrative, nature, and the natural law: from Aquinas to internationalhuman rights / C. Fred Alford.

p. cm.ISBN 978–0–230–62279–1 (alk. paper)1. Natural law. 2. Natural law—History. I. Title.K460.A44 2010340′.112—dc22 2009035089

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C o n t e n t s

Preface vii

1 Introduction 1

2 Saint Thomas: Putting Nature into Natural Law 21

3 Maritain and the Love for the Natural Law 49

4 The New Natural Law and Evolutionary Natural Law 83

5 International Human Rights, Natural Law, and Locke 107

6 Conclusion: Evil and the Limits of the Natural Law 135

Notes 149

References 159

Index 169

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P r e f a c e

Beginning with Saint Thomas Aquinas and ending with the latestdevelopments in international human rights, I have sought to bringa fairly traditional interpretation of the natural law to some ratheruntraditional problems and areas. The term “traditional interpreta-tion” refers not to the religious or ideological perspective of the book,but rather to the view that natural law is “written on the heart.”Untraditional is the way my approach uses narrative theory to putfeelings into words, and words into feelings. The result is that stories,rather than argument, become the basic unit of the natural law. I donot claim that this is the only way to do natural law; I do claim that itis a fruitful way.

More than any other book of mine, I have kept the question ofthe reader in mind. Who am I writing for, I kept asking myself? Not,I think, for the usual audience of the academic monograph: fellow pro-fessionals interested in the technical details of the subject. I am moreinterested in explaining natural law and its relevance today to thosewho might imagine that the natural law has something interesting tosay, but can’t quite figure out what. The reader will require some back-ground in philosophy, theology, or political theory. Better yet is a firmfoundation in the liberal arts, though that is becoming a rare legacy.In any case, the reader who wants to do something with the naturallaw, rather than argue about this or that detail, would be my idealreader.

What can one do with the natural law? One can make sense of theproper relationship between morality and public life. One can explaina good deal of otherwise puzzling human behavior, particularly ingroups. Evolutionary natural law, the topic of chapter 4, is particularlyhelpful in this regard. One can begin to understand when talk aboutinternational human rights has some basis in natural law, and when it isjust talk. Of course, it’s all just talk, isn’t it? Yes and no. For natural lawto add something to our discussions, nature, including human nature,must be a meaningful category, not just a term of suspicion and con-tempt. For too long now, at least since Immanuel Kant (1724–1804),

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viii P r e f a c e

ethics, including that ethical theory known as the “new natural law”(discussed in chapter 4), has tried to lift ethics out of nature, so thathuman autonomy, ethics, and freedom might coincide. The naturallaw challenges this direction in ethics, and yet it is a challenge aboutwhich we must be careful. Nature does not speak for itself, but only inthe stories we tell about it, stories that are never free of the dominionof fear, power, and desire—that is, society, economics, politics, andculture.

The heroes of the natural law, in my book, are the unlikely com-bination of Jacques Maritain and John Locke. Maritain because hisbackground in phenomenology, coupled with his love of poetry (andperhaps his love of love), enables him to make the most sense of thatold saying that natural law is “written on the heart.” In other words,Maritain makes sense of the intuitive dimension of natural law: thatwe know it even before we can explain it.

Locke is valuable because he helps keep us modest. Locke’s abidingconcern with the “mediocrity” of men’s minds, as he puts it, coupledwith the overwhelming tendency of humans to confuse the historicaland social concerns of the day with the natural law, led him to limitthe natural law to the basics of what today we call international humanrights. By the term “basics,” I refer to the rights of life, liberty, andsecurity of person. Within this sphere, however, natural law is absolute,a duty, not just a right. In other words, individuals have rights notbecause individuals automatically have rights, but because individualsare all subject to the same natural law.

My thesis (what I bring to the argument that I think is original)is an appreciation of the consequences of seeing human rights as nat-ural law: a humility that lets the other be, that recognizes a sacredboundary between my community and another that we have a duty torespect, and to protect, with arms if need be. My inspiration for thisidea comes from Reinhold Niebuhr, a Protestant theologian whoseinsight into the natural law is coupled with a corresponding blindness.Niebuhr’s blindness stems, in good measure, from his apparent igno-rance of the contribution of Jacques Maritain to the development ofthe natural law.

Parts of chapters 2 and 3, on Saint Thomas and Jacques Maritain,are at points fairly technical, having to do with the status of realismin Thomas, and the influence of personalism, as the teaching is called,on Maritain. Understanding the natural law does not have to be madedifficult. In some ways it is the easiest thing in the world becauseit is indeed natural. But the history of the natural law raises somephilosophical and historical issues that are worth understanding if we

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P r e f a c e ix

are to fully appreciate the claims natural law makes about the moralworld we share.

Nevertheless, there are a number of debates among scholars overthis or that aspect of Thomas, Maritain, and Locke that I have declinedto address. For example, I argue that the state of nature in Lockerepresents his vision of life under the natural law, a position similar toone held by some members of the so-called Cambridge School. Otherscholars disagree, but this is not a disagreement that will be helpful toanalyze for the purposes of the argument at hand, which is to show thecontinued relevance—and some surprisingly radical consequences—ofa rather old-fashioned way of looking at the natural law.

My thanks are reserved primarily for my students, graduate andundergraduate alike, who have forced me to understand what Iwas explaining to them about the natural law in classes in ancient,medieval, and modern political philosophy. It is from this effort, overa number of years, that this book came almost to write itself.

Do other professors ever have that awful feeling of talking or lec-turing about some topic, only to silently say to themselves somethinglike, “Not only do I not understand what I am saying, but I wouldn’tbelieve myself for a minute were I on the receiving end”? It’s the feel-ing I get when I can recite all the right words about a topic, define thenatural law perfectly, as Thomas defines it, for example, but have notyet made the words my own, generally because I have not put them inmy own terms and language, and so come to a decision about whetherI believe them or not.

I can teach something I don’t believe. If I couldn’t, I wouldn’t bea teacher, but a preacher. But I find it extraordinarily difficult to teachsomething that I don’t understand in my own terms, my own lan-guage, my own examples from life. This book began as that struggle,even as it has come to take on something of a life of its own. For in theend, a book must address an audience, not just the needs of its author.Earlier, I described the audience I imagine as reading this book. Butperhaps I will be surprised.

In thinking about narrative and the natural law, I owe an intel-lectual debt to a former colleague, Peter Levine, which is not fullycaptured in the references. Levine is currently research director of theJonathan M. Tisch College of Citizenship and Public Service at TuftsUniversity. He would not likely agree with many of my conclusionsabout the natural law.

C. Fred AlfordYarmouth Port, MA

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C h a p t e r 1

I n t r o d u c t i o n

Natural law is not an ethical position we are asked to adopt.Neither is it a philosophical claim that we are required to foundor justify. Natural law is a claim that there are certain judgmentsthat we have already made and could not help making. Naturallaw is an account of what we already know about right andwrong, even if we do not know we know it, and even if wehave the misfortune of never learning what we already know.We waste our time if we think that natural law can be proven,that the point is to found, ground, or in some other way demon-strate the truth of natural law. Yet, a great many academicsspend their time doing just that. I would be wasting my timetrying to prove natural law to you.

Would that I were clever as Socrates, calling forth your hid-den (even to yourself) knowledge of the natural law merelyby asking you a series of questions. The process is known asmaieutic,1 referring to the practice of midwifery, through whichthe questioner causes the answerer to give birth to what isalready present, just waiting to be born. Since I’m not thatclever, and since this is a book, not a dialogue, I will have totake the long way around.


2 N a r r at i v e , N at u r e , a n d t h e N at u r a l L aw

It is civic law that we drive on the right side of the road(at least in the United States), don’t drive over the posted speedlimit, don’t trade on insider information in the stock market,and so forth. It is natural law (reflected in the civic law) that itis wrong to murder. To call natural law “natural,” means thatit is wrong for the same reasons everywhere, just as “fire burnsboth here and in Persia,” as Aristotle remarks (NicomacheanEthics, 1134b27). Antigone put it as well as anyone ever haswhen King Creon asks her if she was aware of his proclamationagainst burying her brother Polyneices, and if so, why she stilldared break the law.

For me it was not Zeus who made that order,Nor did that Justice who lives with the gods belowmark out such laws to hold among mankind.Nor did I think your orders were so strongthat you, a mortal man, could over-runthe gods’ unwritten and unfailing laws.Not now, nor yesterday’s, they always live,and no one knows their origin in time.So not through fear of any man’s proud spiritwould I be likely to neglect these laws,draw on myself the gods’ sure punishment.

(Sophocles, Antigone, lines 450–460,Wyckoff translation)

About some speeches, explication would only lessen theirimpact.

In fact, natural law is all around. Today, it is most presentin what is called international human rights, even though somequestion the relationship. Are human rights what natural lawlooks like in a liberal era—that is, an era in which the indi-vidual comes first? If so, then individuals are born with rightsattached to them, so to speak. Another way of looking at thisquestion, an older way, is to see individuals as possessing rightsbecause of how each individual stands in relationship to thenatural order, including his fellow man or woman. In otherwords, human rights come from natural law. We have human


I n t r o d u c t i o n 3

rights only because we first share in the natural law. This is animportant distinction, but it can wait.

One expression of human rights is the United Nations’s Uni-versal Declaration of Human Rights, adopted in 1948 in theaftermath of the Second World War. Much of what it says seemsquite straightforward.

Article 1All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should acttowards one another in a spirit of brotherhood.

Article 3Everyone has the right to life, liberty and security of person.

Article 5No one shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment.

Article 18Everyone has the right to freedom of thought, conscience andreligion; . . .

And so it goes—a total of 30 articles, most of them similar tothese in tone and spirit, and the last ten more specific. Like mostreaders (I imagine), I was in almost complete agreement withthe Universal Declaration of Human Rights, but soon foundmyself wondering. What would happen if someone said, “No,some people are superior to others. Some people deserve to betortured. Freedom of thought and expression are too dangerousto be left to any but an elite few”? What would I, what wouldanyone, say to this person? For, the Universal Declaration offerslittle help here. It asserts these rights, but it offers no argumentsfor them, though if one works hard enough one can discover anargument in the Preamble, an argument based on shared mem-bership in the human family, a point considered in chapter 3.This leads to another consideration. Perhaps one cannot arguevery well for principles as basic as these. One just knows or feels(likely some combination of both) them, or one doesn’t.



The Universal Declaration of Human Rights was not writtenin a vacuum. It was written, in part, in response to a prob-lem faced by the Allies at the end of the Second World War.Almost everything the Germans did was totally legal accordingto the German civic law. The Germans were scrupulous aboutthe law—passing laws to strip Jews of their citizenship, laws todeport them to the death camps, and so forth. When it was timefor the Allies to put the architects of the Holocaust on trial in1945, there was a problem. The German defendants said thatthey were following the laws of Germany. How could they befound guilty of following the civil law?2

The Allies put twenty-four of the most important capturedleaders of Nazi Germany on trial in the city of Nuremberg,trials that lasted almost a year. Though there was considerabledispute about the status of the court at the time, in retrospect,the Nuremberg Trials can be seen as establishing an importantprinciple, one reflected in the Universal Declaration of HumanRights itself, as well as in the International Criminal Court, aninstitution whose origin can be traced back to the NurembergTrials. About some acts, it is no defense to claim that one isfollowing orders, or even the law of the land. Every humanbeing with reason knows that it is wrong to deliberately murderinnocents.

Hermann Goering, one of the leading organizers of theHolocaust, told the court that the trial was nothing more thanan exercise of power by the victors of the war; justice had noth-ing to do with it. The trial court claimed differently. About suchthings as the murder of innocents, there exists a higher law thatevery normal human being must know. We may disagree overthe details, but every normal human being knows that civil laws,or commands claiming the status of law, proclaiming the delib-erate murder of women, children, and noncombatants violatethe conscience of humankind.

Though the Allies never used the term “natural law,” theconcept was implicit from the beginning. The Nuremberg Trialswere not just a case of the victors punishing the vanquished.The trials recognized that every mature human being knows(or should know) that certain terrible acts, whether or not they



are in accord with the civic law, are wrong, and not to be com-mitted. Furthermore, certain commands, even when given bythose in a position to issue lawful orders, so violate the con-science of humankind that they are not to be obeyed. Thisrecognition is reflected in the First Protocol of the Geneva Con-vention of 1977, which protects unarmed civilians from attackby air and ground forces.

Another example of the presence of the natural law in every-day political life is Martin Luther King Jr.’s “Letter fromBirmingham Jail,” written in 1963, during the height of thestruggles against segregation in the American South. King wasin jail for protesting segregation, which was legal at that time inAlabama. This is what King said about the laws he broke, osten-sibly parading without a permit, but really the laws upholdingsegregation.

How does one determine whether a law is just or unjust? A just law isa 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. Toput it in the terms of St. Thomas Aquinas: An unjust law is a humanlaw that is not rooted in eternal law and natural law. Any law thatuplifts human personality is just. Any law that degrades human person-ality is unjust. All segregation statutes are unjust because segregationdistorts the soul and damages the personality.3

Still, the problem remains. What do you say to someone whocounters, “I don’t think such a higher law exists; I can’t makeany sense of it. You say it does, I say it doesn’t. Who’s todecide? The one with the most power, that’s who.” Againstsuch an argument, at least when put forth by someone likeGoering, you don’t muster better counterarguments. You shoothim, as has been wisely said. We should not expect our argu-ments to overwhelm the wicked and unreceptive. Neither theNuremberg Trials nor Martin Luther King Jr. relied on argu-ments alone. The Nuremberg Trials convicted and executeda dozen leading Nazis (Goering committed suicide the nightbefore his planned execution), and King helped mobilize a vastcivil rights movement employing civil disobedience.



Relativism?

Allan Bloom (1988), who taught at the University of Chicagofor years, said that there are two things that almost everyfreshman there believes:

The truth is relativeEverybody is equal

The second assumption depends on the first. If the truthweren’t relative, then those who know it would be better thanthose who don’t, and democracy itself would be impossible.Democracy depends on relativism, or so the reasoning of theyoung seems to conclude. That other conclusions might followseems not to have occurred to Bloom’s students, or so he tellsus, such as that the truth is not relative. But we live with thosewho hold to false beliefs out of a combination of desire for civilpeace, plus a certain modesty about our own convictions (whichis not the same as relativism).

James Q. Wilson, who approaches the natural law fromthe perspective of evolutionary development (the topic ofchapter 4), makes much the same claim as Bloom.

Ask college students to make and defend a moral judgment aboutpeople or places with which they are personally unfamiliar. Many willact as if they really believed that all cultural practices were equally valid,all moral claims were equally suspect, and human nature was infinitelymalleable . . . . In most respects their lives are exemplary. Thus it wasall the more shocking when . . . . I found that there was no generalagreement that those guilty of the Holocaust itself were guilty of amoral horror. “It all depends on your perspective,” one said . . . . Tomany of my students, there is no human nature that renders someactions entirely inhuman.

(Wilson 1993, 6–8)

If Bloom holds to a version of the natural law (and that isunclear), it is certainly different from Wilson’s vision, which isbased in human social nature as it has evolved over a hundredthousand years. Bloom’s natural law would probably comecloser to Antigone’s belief in universal principles that are known



by all who would but look and listen. This is the implicationof the title of his book The Closing of the American Mind tothe possibility of an immediate natural experience of right andwrong.

Different as their views of the origin of natural law are, bothBloom and Wilson reveal that the issues raised by the naturallaw are not merely academic. Or if they are, then the issues theacademy deals with are not just for ivory tower intellectuals, butconcern every thinking individual:

Do we need to prove that the Nazis were wrong, or is it good enoughsimply to know it? And, does “know it” mean anything more, or less,than “feel it?”

Does it help to know that Martin Luther King Jr. wasn’t merely victo-rious in his struggle against legal segregation, but that he had naturallaw on his side? Did natural law help him and others of goodwill intheir struggles? Does it help us better understand the history of thecivil rights movement, including that history yet to be written?

What happens when students and others lose confidence in their abilityto say that acts of mass murder and genocide are definitely wrong,indeed inhuman?

What about more subtle (and they are not terribly subtle) examples,such as someone living a life of drugs and crime? Do we know forcertain that such a life is wrong, and does natural law tell us so?

A moral catastrophe

A number of years ago, I was invited to serve on the ethicscurriculum advisory panel of the local county school board. Thegoal was to develop an ethics curriculum for the lower grades.The advisory panel had on it those you might expect: ministers,rabbis, a couple of concerned parents, a couple of concernedteachers, and me. What should an ideal ethics curriculum teach?

We never got anywhere. We got stuck at the very beginning,at teaching students that they shouldn’t hit each other.

“How can we teach that?” said one committee member,evidently echoing the views of several other members. “Some



cultures value the physical expression of difference, and whoare we to say otherwise?”

An odd thing about this conversation was that not a sin-gle member of this committee thought that students shouldhit each other, or should be taught that it was correct toexpress their differences in this way. Furthermore, no commit-tee member knew of the existence of any culture that valuedthe “physical expression of difference,” by students hitting eachother. Not only that, but the committee understood that ina contemporary world in which a student who got hit mightcome back with a weapon, self-control is not just a virtue, itis a lesson in survival. The committee members simply had noconfidence in their ability to judge right and wrong for the pur-poses of teaching others. The specter of “cultural relativism”haunted them—that someone somewhere might object to aparticular value, and they would have nothing definitive to say,only their own untrustworthy judgment to fall back on. Thenotion that the cultivated judgment of the community, if notcorrupted, is the basis of the natural law did not occur to them;I believe they would have rejected it if it had. Why? Because intheory, though not in practice, individual choice is sacred. Theresult can be quite confusing.

Before continuing, I should tell you something about thecommunity in which I live. It is a planned community, origi-nally built upon a communitarian ideal, in which three faithswere to worship separately but together in the same “InterfaithCenter,” which is purposefully unadorned with religious sym-bols. The communitarian ideal has faded over the years, but hasnot entirely disappeared. In other words, not every communitywould have responded as the representatives of this communitydid. Though they were a generation older, one imagines thesecommittee members as students in one of James Q. Wilson’sclasses. “In my classes, college students asked to judge . . . willwarn one another and me not to be ‘judgmental’ or to ‘imposeyour values on other people’ ” (1993, 7).

The experience I had is sometimes, but misleadingly, calledrelativism. At first glance, it is similar to the situation described



by Alasdair MacIntyre in the opening pages of After Virtue(1981, 1–3). Imagine that an ecological catastrophe hadoccurred, brought on by the unfettered experimentation of sci-entists. Angry mobs had burned laboratories, as well as librariesfilled with scientific journals. Much later, at least a generation,possibly more, scholars as well as ordinary men and womenwould try to reconstruct the science that had been lost. Theywould recover many of the terms, such as “molecule” and “iner-tia,” but the experimental and theoretical framework that gavethese terms meaning was lost. Neither the ideal of the scientificmethod, nor the theories in which these terms were embedded,and which gave them meaning, was available to the new scien-tists. As a result, their use of the scientific terms was arbitrary,and ultimately incoherent.

This is the situation with ethics, today, says MacIntyre.Terms such as “morally right,” “the human good,” and soforth remain, but the context, which is roughly that of theAristotelian worldview, in which the telos of a good human lifewas obvious for all to see, has disappeared. Absent, in otherwords, is the evaluative framework, the good for man andwoman, that makes a judgment about a life or an action objec-tive, not merely a matter of taste. Where once one could talkabout a human life as one might talk about a watch, measuringeach by objectively shared standards of excellence, that time haslong passed.

Why has it passed? Because we no longer live in traditionalcommunities of shared values. This is the environment in whichnatural law emerged—a world in which people understoodthemselves first and foremost as part of a community, so thatevery individual could see that his or her own good was natu-rally part of the common good. Perhaps the best way to explainthis is to tell a story about its polar opposite.

If the good people of the ethics committee correspond toGlaucon and Adeimantus, characters in Plato’s Republic whorepresent average citizens, the Avalanche Man, as I call him, cor-responds to Thrasymachus, a sophist who speaks the fearsome,brutal truth.4 Among my very best students, the Avalanche Man



worked almost full time, putting himself through school, allthe while maintaining an “A” average. The summer after hisjunior year, he worked as an intern at an investment bank-ing firm on Wall Street, and went on to earn an MBA atHarvard.

He came back to visit me several years later (well before theGreat Recession of 2008), and I asked him why he had workedso hard, studied so hard, and given up so much, for we hadjust been talking about how it had been easy for him to savemoney. It had been easy because he had no time for a social lifeand so had nothing to spend his money on. Nothing in collegeexcept room, board, and books, and nothing while at his invest-ment banking job except good suits and a little room in NewJersey, a quick commute by subway to Wall Street. Workingseventy- to eighty-hour weeks doesn’t leave much time to spendmoney.

Why do you live like this, I asked? What’s the point? Will youever stop?

Not for now, he said. I think the country is headed for aneconomic disaster, an economic collapse. It’s like an avalanche.And I want as many bodies as possible between me and thebottom to cushion the fall.

I was speechless. There was nothing in the way he talkedabout the impending economic avalanche that suggested hos-tility, or that he took pleasure in the thought of being one ofthe few survivors of a great catastrophe. That’s just the way hehad always known it would be, and he had been planning foryears to be a survivor.5 I thought of the Avalanche Man againon 9/11, when hundreds of men and women, paid hundreds oftimes less than my former student, rushed into the bottom ofthe collapsing avalanche of the twin towers and died trying tosave others. Our society depends on that.

Natural law positivism

How to characterize the position of most people in the UnitedStates today toward the natural law, since even the term seemsalmost a relic of a bygone era? As Vice President Joseph



Biden stated when he was on the Senate Judiciary Committee,Justice Clarence Thomas of the Supreme Court was unqualifiedbecause he believed in the natural law (a suggestion for whichthere is little evidence), and “natural law dictates morality tous, instead of leaving matters to individual choice” (MacIntyre2000). Over whether we really want to leave basic moral issuesto individual choice, and what the world would look like if wedid, Biden did not opine.

In another book (Alford 2006, 23–60), I reported on mystudies of what young people believe about the natural law,and it is primarily on the basis of my research for that bookthat I draw my conclusion. The simple answer, the unsur-prising answer, is that the vast majority of those interviewedavoided the extremes of both the ethics committee and theAvalanche Man. Most were not relativists. Most held to aslimmed-down version of the natural law. If one were goingto put a name to this majority position, the term “positivis-tic natural law” would come closest to the mark, referring tothe way in which this position posits reality. Positivistic naturallaw is descriptive natural law, a description that remains on thesurface.

The preeminent theorist of positivistic natural law isH. L. A. Hart. Given certain facts of human nature, Hartargues that enforceable law is necessary if humans are to livedecently among each other. The facts of human nature includethe following:

Human vulnerability: if humans had exoskeletons, natural law wouldlook quite different.

Relative equality: the weakest can kill the strongest because even thestrong must sleep.

Limited altruism: people are not devils, but neither are they angels.

Limited resources: people need food and shelter, and so someinstitution of property, though not necessarily private property, isneeded.

Limited understanding and strength of will: most can see the pointof this minimal natural law [for that is what Hart calls it], but



frequently lack the foresight and strength of will to stick to thesearrangements.

(Hart 1994, 194–198)

Accordingly, says Hart, one can see that the laws of statesand nations, called positive law, are rooted in natural necessity,which Hart readily characterizes with the term “natural law.”“These simple truisms we have discussed . . . disclose the core ofgood sense in the doctrine of Natural Law” (199).

MacIntyre argues that the natural necessity to which Hartrefers is void of moral content. An unjust legal system wouldfulfill the needs of stability as well as a just legal system. A systemof laws that preserved the security, stability, and property of itsmembers would be valid even if these laws condoned slavery andthe persecution of minorities (MacIntyre 2000, 96–97). Onethinks here of National Socialism in Germany, a system of obses-sive legality, under which the dispossession and persecution ofthe Jews was entirely legal.

MacIntyre does not give Hart credit for recognizing thisproblem. Hart does; he simply doesn’t think it is best solvedunder the guidance of the natural law. On the contrary, menand women must take upon themselves the moral burden toviolate an iniquitous law, as Hart calls it (1994, 211–212).Hart holds this position because he believes that “the minimumcontent of Natural Law” is supported by the facts of humannature, whereas “a teleological conception of nature as contain-ing in itself levels of excellence” is “too metaphysical for modernminds” (1994, 192–193, Hart’s emphasis).

Hart’s great virtue is his refusal to pretend that the naturalis-tic fallacy (the so-called derivation of “ought” from “is”) posesa barrier to natural law. On the contrary, the naturalistic fallacyis a fallacy only to those modern minds that cannot imaginethat the desire to live might itself imply the desire to live well.Where Hart goes wrong is in suggesting that in stepping out-side the law, one is stepping into a realm of moral nothingness,or at least into a realm in which nothing useful can be said.Hart does not state this explicitly, but because he says noth-ing else about this realm outside the law, that is the conclusion



one must draw. The complement of Hart’s positivistic natu-ral law is moral decisionism. I return to this point in a laterchapter.

Narrative, Nature, and the Natural Law

“Written on the heart” is a term often used to describe naturallaw. It means that merely by virtue of being human you know it,even though you may have chosen to forget it, or have been sounfortunate never to have learned what you already know. Thelatter category sounds contradictory, but it is not. It means sim-ply that you have been brought up in an environment in whichyou have not been encouraged to develop or use your moralintuition, what Jacques Maritain, the twentieth century’s mostinfluential interpreter of Thomas Aquinas, calls “connaturality.”Maritain’s account of moral intuition is the topic of chapter 3;one way in which morality is corrupted is found in Aquinas’saccount of the German robbers in, chapter 2. For now, thepoint is that moral intuition can have the status of an undevel-oped capability, much like an undeveloped talent in other areasof life. Someone with naturally perfect pitch may never learn toexpress that gift if he or she remains in a musically impoverishedenvironment.

Many natural law theorists define natural law as “reasonreflecting on nature.” “Nature” has been defined by evolution-ary biologists, the subjects of chapter 4, as evolved mammaliannature, including human nature. But in the larger traditionof the natural law, nature has come to mean not just humansas they are, but as they could be at their very best, as well asthe proper place of humans in the order of things. Here too,an evolutionary sense of development is at work, but unlikethe best and most self-conscious evolutionary biologists, whounderstand that evolution means change, not fulfillment, nat-ural law theorists treat development as an evaluative term. Inother words, it’s good to become the best human one can be,to fulfill one’s potential as fully as possible.

And what is that? Aristotle argued that reason can best answerthe question of human fulfillment (N. Ethics, book 2). Others,



such as Jacques Maritain, have relied on intuition, knowledgeby inclination.

Knowledge by inclination . . . is a kind of knowledge that is not clear,like that obtained through concepts and conceptual judgments. It isobscure, unsystematic, vital knowledge by means of instinct or sym-pathy [connaturality], in which the intellect, in order to make itsjudgments, consults the inner leanings of the subject—the experiencethat he has of himself—and listens to the melody produced by thevibration of deep-rooted tendencies made present in the subject.

(Maritain 1951, 91–92)

Another natural law theorist, Vernon Bourke, puts it even moresimply. Most men and women come to know the natural lawby means of “ordinary grasping . . . a combination of low-gradecognitive and affective activity. Sometimes it is close to animalfeeling” (Bourke 1998, 218). Not only ethologists (scientistsof animal behavior), but moral philosophers such as MacIntyre(1999) have come to recognize that animal feelings, based onsympathy, and shared with higher animals, such as chimpanzeesand dolphins, are the basis of human morality and the naturallaw; but only the basis, a necessary but not sufficient condition.Some evolutionary natural law theorists do not go on to makethis important distinction.

Though I do not adopt the view of Maritain, and certainlynot that of Bourke, their thinking guides my own. Natural lawhas the status of a moral intuition. But if natural law stems fromintuition, that is neither an argument nor sufficient evidence onits behalf. The intuitive basis of natural law must be subject tonarrative. Moral intuition must become part of a social group’sstory about itself in history. Even if there is direct access to thenatural law through intuition, the status of natural law (bothepistemological and practical) depends entirely upon its place inthe narratives we weave as communities over time.

This claim about narrative is an empirical claim, as well asan epistemological one. While we can know our intuitions byfeeling them, intuitions possess the status of a natural law onlyto the degree that they are shared with others in a community



over time. And the only way humans have found to do thisis to tell stories about their intuitions. To be sure, one mightcall these stories “derivations from first principles,” but that isjust a matter of form and label. Since first principles (murder isalways wrong, for example) are not self-justifying, they requireother stories to substantiate them. For example, one might tella story about a god giving a prophet a tablet with this com-mandment written upon it. And, if one were to question thisstory, one would tell another story, perhaps about this god’screation of the world, and so on. My argument (and it is notuniquely my argument) about stories will become clearer in thechapters ahead. The point for now is that the claim that naturallaw rests upon intuition does not create or avoid any unusualepistemological problems—that is, problems in the theory ofknowledge.

Intuition is not self-justifying. Nor should we reject out ofhand the claim that moral intuition taps a deep source of humanexperience that reveals the meaning of life in how we care foreach other. This experience too must be subject to narrative,as it already has been, for narrative is how we make sense ofthe world. Or, as Barbara Hardy puts it, “We dream in narra-tive, daydream in narrative, remember, anticipate, hope, despair,believe, doubt, plan, revise, criticize, construct, gossip, learn,hate and love by narrative” (Hardy 1968, 5). By subjectingour intuitions to narrative, and so sharing them with others,we make them more than private possessions, but the subject ofsocial and cultural negotiation. Not just me and my feelings, butthe cultured and developed feelings of a community in history,over time, is the basis of natural law.

Moral intuitions are not self-justifying. And narratives aboutthem are not just likely stories about how the moral world isput together. If my argument is correct, what makes the nar-ratives of natural law special is that they tap a deep ethicalintuition about right and wrong, good and bad. However, thereis reason to distrust such intuitions, certainly when they are theproduct of a single man or woman’s insight, but even whenthey are widely shared. Large numbers of people believed fora long time that slavery was compatible with the natural law



because some people were natural slaves, a view given weight bythe teachings of Aristotle (Politics, book 1, c’s 3–7; N. Ethics,book 7).

Narrative about intuition, it will be argued, is a good guideto natural law only about the most basic issues, and then onlywhen all affected have had a chance to tell their stories and havethem heard. This includes, in the case of the preceding example,the slave. To this should be added that our confidence in thisnarrative is increased over time. Should this narrative remainconvincing to large numbers of people, there would be reasonto say that it is not merely a narrative, but an articulation ofour connatural experience, as Maritain calls it, “the melody pro-duced by the vibration of deep-rooted tendencies made presentin the subject.”

To Maritain’s claim, I would offer a friendly amendment.Natural law is the vibration of deep-rooted tendencies presentnot only in the subject, but in the “inter-subject”—that is, therelationships among all who are affected by the natural law, suchas master and slave. Were this ideal standard adhered to in theera of slavery, there could have been no slavery. For how couldthe relationship between master and slave vibrate in any otherway but cacophonously and out of tune? You are writing aboutan ideal, the reader might reply. Of course, but what else is thenatural law?

My Approach is not Burkean

Some who are familiar with the history of political philosophy(and this book is not written for them alone) will be surprisedto see Edmund Burke (1729–1797) even mentioned under thecategory of natural law. The usual line on Burke runs like this.

He was primarily a utilitarian, a worshiper of the expedient, who wasconvinced that the mere fact that any custom or institution had grownup over a long period of time established an overwhelming presump-tion in its favor. The whole business of appealing from tradition toreason and nature was distasteful to him.

(Randall 1940, 432)



In fact, Burke was a thoroughgoing exponent of the naturallaw, employing it consistently throughout his long career in theBritish parliament and as a private citizen. Against British lawsdenying Irish Catholics basic rights of citizenship, Burke wrotethat such laws were not only inexpedient, but that they violated“the principle of a superior law, which it is not in the power ofany community, or of the whole race of man, to alter—I meanthe will of Him who gave us our nature, and in giving impressedan invariable law upon it.”6 Similarly, the right of Irish Catholicsto own property is based on eternal law and equality, “which isgrounded on our common nature.”

Burke favored the American colonists’ cause against theCrown, not because he believed in an abstract right of revo-lution, but because he believed that if the British governmentsucceeded in destroying liberty abroad, Englishmen would soonhave none at home. “In order to prove that the Americanshave no rights to their liberties, we are every day endeavour-ing to subvert the maxims which preserve the whole spirit ofour own.”7 The principle Burke followed is that arbitrary will,including the will of the Crown, must always be subordinate tothe civic law, and the civic law to eternal law.

Against the power of the East India Company to rule overIndia in an arbitrary manner, Burke argued that the

Magna Charta is a charter to restrain power, and to destroy monopoly.The East India charter is a charter to establish monopoly and to createpower. Political power and commercial monopoly are not the rights ofmen . . . . These chartered rights do at least suspend the natural rightsof mankind at large; and in their very frame and constitution, are liableto fall into a direct violation of them.8

Burke concluded that all men are born subject to one great,immutable, preexisting law, by which we are connected in theeternal frame of the universe.9

Against the French Revolution, Burke had, of course, muchto say. An especially revealing comment came in his response toa Dr. Price, a cleric who dared to compare the French Revolu-tion with the English Glorious Revolution. Both, said Price,



provided an opportunity for citizens to choose their gover-nors. Burke’s response comes close to identifying natural lawwith English common law and common practice. The GloriousRevolution, said Burke,

was made to preserve our ancient indisputable laws and liberties, andthat ancient constitution of government which is our only security forlaw and liberty . . . . The very idea of the fabrication of a new gov-ernment, is enough to fill us with disgust and horror. We wishedat the period of the Revolution, and do now wish, to derive all wepossess as an inheritance from our forefathers. Upon that body andstock of inheritance we have taken care not to inoculate any scionalien to the nature of the original plant . . . . Our oldest reforma-tion is that of Magna Charta. The ancient charter . . . was nothingmore than a re-affirmance of the still more ancient standing law ofthe kingdom . . . . In the famous law . . . called the Petition of Right,the parliament says to the king, “Your subjects have inherited thisfreedom,” claiming their franchises not on abstract principles “as therights of men,” but as the rights of Englishmen, and as a patrimonyderived from their forefathers.

(Burke 1955, 35–36)

There is much to admire in Burke, particularly the way he con-sistently applied natural law thinking against arbitrary power inthe defense of Irish Catholics, American Colonialists, and EastIndians. Nevertheless, his way of approaching the natural lawis opposite to the one pursued here. For Burke, Britain’s “con-stitutional policy” works “after the pattern of nature,” and its“political system is placed in a just correspondence and sym-metry with the order of the world,” held together “by the dis-position of a stupendous wisdom moulding together the greatmysterious incorporation of the race . . . . by preserving themethod of nature in the conduct of the state” (Burke 1955, 38).Forget for a moment how comfortable Burke was with theBritish class system. Burke has drawn the natural law and thestate so closely together that they have practically become one.Worrisome enough in Burke’s day, it took the rise of mod-ern totalitarianism, whose defeat led in turn to the rise of theculture of international human rights, to reveal the paramount



importance of separating natural rights from the state, and bothfrom any organic ideal.

My way of proceeding assumes that natural law is alwaysin tension with the state. Natural law is a narrative we tellourselves—not just a good story, but one that articulates amoral intuition. In judging the validity of this intuition, we mayadopt some Burkean standards, such as whether our narrativehas stood the test of time and circumstance, but we should alsoconsider some rather non-Burkean standards, such as whetherall who are participants in the story have had a role in tellingthe story. In other words, is the story told, at least in part, byeveryone concerned, and not just for and to them?

Moral intuition, transformed into narrative, will be given lit-tle extra weight because it is embodied in the constitutionalpractices of the state. On the contrary, it is assumed that thestate’s practices come closer to reflecting a history of the balanceof power among those who govern than they do the natural law.To be sure, time, practice, tradition, and collective wisdom maygo together, but so may prejudice. As Burke puts it,

Each contract of each particular state is but a clause in the great pri-maeval contract of eternal society, linking the lower with the highernatures, connecting the visible and invisible world, according to a fixedcompact sanctioned by the inviolable oath which holds all physical andall moral natures each in their appointed places.

(Burke 1955, 110)

Rather than continue to state the obvious, that Burke comesclose to equating the natural law with the class and social struc-ture with which he is most comfortable, I shall wait until theconclusion of chapter 6 to make a somewhat different point,one that Burke should have appreciated, but from which hedrew quite a different conclusion. It is a point emphasizedby Burke’s great English adversary in natural law thinking,John Locke, the man who regarded government as a socialcontract, not to be looked at with holy reverence, but as afiduciary arrangement with a people’s governors. A contractthat may be broken when the governed become convinced that



they have suffered a long train of abuses (Second Treatise ofGovernment, 222).

Contract is not, however, the aspect of Locke’s thinking thatI will emphasize. Emphasized instead is Locke’s appreciation ofthe mediocrity of men’s minds, the way in which tradition andcustom are so easily confused with natural law. For Locke, thismeans that the natural law should be confined to the most basicrights: the rights of life, liberty, and property. Burke held tothis same list of rights, but in practice this meant accepting thenatural order of society, albeit a society under law. Can we bemore ambitious than Locke without falling into Burkean con-servatism, which would treat the traditions and ways of life withwhich we are most familiar as though they were automaticallyan expression of the natural law?


C h a p t e r 2

S a i n t T h o m a s : P u t t i n g N at u r ei n to N at u r a l L aw

Thomas Aquinas (ca. 1225–1274) is the paradigmatic naturallaw theorist. Not the first; that honor probably goes to Cicero,though some would grant it to Aristotle. Aquinas’s importancestems from the way in which he respects nature, includinghuman nature, a respect that it had lacked during the medievalperiod. The influence of Aquinas on the natural law is evincedby the fact that almost any discussion of the topic will refer toAquinas, much as any discussion of psychoanalysis will even-tually refer to Freud, any discussion of classical philosophy toPlato or Aristotle. One influence we should be skeptical of,however, is that of tracing the lineage of evolutionary natu-ral law, where much of the intellectual action is today, back toAquinas. Frequently compared, Aquinas and evolutionary nat-ural law mean something quite different by the term “nature.”

Cicero’s discussion of the natural law in On the Republic(ca. 54–51 BCE) sets the stage for later discussions of the nat-ural law. Cicero is not considered the “father” of natural lawonly because he did not elaborate as Aquinas did, sometimesin excruciating detail. An extended excerpt from Cicero will setthe stage for much of our subsequent discussion as well.



True law is right reason conformable to nature, universal, unchange-able, eternal, whose commands urge us to duty, and whose prohibi-tions restrain us from evil. Whether it enjoins or forbids, the goodrespect its injunctions, and the wicked treat them with indifference.This law cannot be contradicted by any other law, and is not liableeither to derogation or abrogation. Neither the senate nor the peo-ple can give us any dispensation for not obeying this universal lawof justice. It needs no other expositor and interpreter than our ownconscience. It is not one thing in Rome and another at Athens, onething today and another tomorrow, but in all times and nations thisuniversal law must forever reign, eternal and imperishable. It is thesovereign master and emperor of all beings. God himself is its author,its promulgator, its enforcer. And he who does not obey it flies fromhimself and does violence to the very nature of man. And by so doinghe will endure the severest penalties even if he avoids the other evilswhich are usually accounted punishment. (III, 22)

It is tempting to read Cicero’s defense of the natural law as agloss on Antigone’s more concise defense of her violation ofthe civil law. Certainly, the basic principles are shared: naturallaw is universal, timeless, and the nature in question is primarilyhuman nature in a broad sense of the term. Whether or not oneis punished by the civil law for violating the natural law, naturewill have its say, for one has failed to put one’s own nature inconformity with the larger natural order of things.

What about god? Here, modern readers are likely to mis-interpret Cicero, for the god he is concerned with shareslittle with the Abrahamic God, the monotheistic God of Jews,Christians, and Muslims. For Cicero, god is one with the uni-verse. More importantly, since that phrase has become a cliché,Cicero held that “it is improbable that the material substancewhich is the origin of all things was created by divine Provi-dence. It has and has always had a force and nature of its own”(Lactantius, Divine Institutes, ii. 8.10). This is, of course, quitethe opposite of the prevailing Judeo-Christian view, asserted byAugustine, that God created the world ex nihilo, out of noth-ing (Genesis 1:1–2). In Cicero’s view, one could almost say,the universe created god. However, it would be more accu-rate to state that, for Cicero, there is no difference between


T h o m a s A q u i n a s 23

the universe and god; together they constitute the fiery, puls-ing body that is the universe (Cicero, On the Nature of Gods,book 1).

However imprecise Cicero’s view of god and the universeremains, one may appreciate that lack of clarity was in harmonywith Cicero’s approach. About such big questions one can knowvery little for certain, and today, Cicero would probably be cate-gorized as an agnostic who was not adverse to speculation. Thisis an advantage for the natural law tradition, which continuesto stand in an ambivalent relationship to God, and probablyshould. Except for evolutionary natural law theorists, most (buthardly all) natural law theorists believe in God. However, mostnatural law theorists, including Thomas, understand that it isthe point of natural law that it not rest solely on sacred scripture,or Divine Law. Otherwise, natural law becomes the province ofa particular group of believers, rather than appealing to all whoshare the human world. If natural law becomes the provinceof religious believers, it risks alienating itself from those whowould be moral for reasons having little to do with a traditionalGod, and more to do with their vision of the proper relation-ship among humans (and animals) on this planet. Natural lawrisks becoming irrelevant to nonbelievers.

A wonderful story is told about Thomas. Elements of it arelikely even true, for it circulated during his lifetime. I tell it toyou for no greater purpose than to share a good story. Earlyin his days as a novice in the Dominican Order, Thomas waskidnapped by his elder brothers, probably on orders from theirmother, and imprisoned in a dungeon of the castle of the fam-ily Aquino. There he would stay until he gave up his priestlyambitions (or, in some accounts, until he decided to becomea Benedictine). During most of his imprisonment, which seemsto have lasted almost two years, Aquinas was impassive, resistingonly when his brothers sought to remove his friar’s frock. Tiredof waiting, and perhaps wishing to humiliate their odd brother,Aquinas’s two elder brothers slipped a gorgeous courtesan intohis room while he lay sleeping.

For the first and last time, Aquinas went over the top, grasp-ing a burning branch from the fire, waving it about like a sword,



sending the woman shrieking from the room. With the swordof fire still in his hand, Aquinas went to the door of his dun-geon, locked it from the inside (it must have been more roomthan dungeon), and shoved the burning brand into the door, soas to make the sign of the cross in fire and burnt wood. Throw-ing the burning branch back into the fire, Aquinas sat downand continued his studies, transcribing one of Aristotle’s workson logic.

It is said that on that very night, Thomas had a dream inwhich angels wrapped his loins in a girdle made of cords of fireso painful he awakened with a cry. The girdle represented eter-nal chastity. From that time, he never again suffered from thedesires of the flesh and lived the remainder of his life in celibacy.Soon after their failed experiment in temptation, Thomas’s fam-ily relented, or simply gave up. Aquinas was released to rejointhe Dominican Order, with which he remained until the end ofhis days.1

Realism and Reality

Thomas’s life’s work was to join the world of Aristotle with thespirit of the Bible. The world of Aristotle is the world of nat-ural reality, including the powers of human reason. The spiritof the Bible is the spirit of Divine revelation, and all that isaccessible to faith, above all the teachings of Jesus Christ aboutsalvation, as well as Christ’s life as a living lesson to human-ity. Aristotle allowed Thomas to see nature as nature, and soencouraged humans to live in the natural world. As much asthe natural world is a sign of God’s magnificence, it is also ourworldly home, and religion was at risk of denaturing the worldby turning it into a regime of signs and symbols.2

As Thomas put it in Summa against the Gentiles (2, 4, 1), thetheological point of view is not interested in fire in itself, insofaras it is fire. This point of view is interested in fire as it representsGod’s majesty (Ecclesiasticus 42:15–43:33). Such a viewpointhas its place, but it can get old. Once it comes to dominatethe human experience of the world, it becomes “impossible tolive a healthy and human life in a world populated exclusively



by symbols” (Pieper 1991, 47). Such a world is quite liter-ally inhuman, incapable of supporting an animated human life,and Thomas came upon Aristotle at a time when he, and per-haps the medieval world itself (if one can speak for an era),was yearning for contact with reality in itself, something solidand firm.

Thomas is a theorist of the strangeness of things. Our free-dom consists in freeing ourselves of the cave of the mind,and entering into an encounter with the things of the world.“St. Thomas could as truly say, of having seen merely a stick ora stone, what St. Paul said of having seen the secret heavens,‘I was not disobedient to the heavenly vision’ ” (Chesterton1956, 148). What we have to figure out is how sticks andstones can gain us the heavenly vision. A large part of theanswer is that, for Thomas, the heavenly vision is the unmedi-ated earthly vision, one in which the subject is measured bythe object, adaequatio intellectus et rei.3 The doctrine at workhere is classical realism. The key elements of this teaching are asfollows:

At least some of our concepts refer to corresponding entities in theexternal world. (Not all of our concepts do, because, of course, wecan imagine things that do not exist.)

The knowing subject is not a “brain in a jar,” but a rational animal forwhom knowledge comes by way of the senses.

The concept is not the object of knowledge. The concept is that bywhich we know the thing. The thing itself is the object of knowledge.

Thomas, we shall see, is a classical realist, an apparent empiricist,holding (in a way that only seems modern) that everything thatis in the intellect has been in the senses (Chesterton 1956, 134).

One way of reading Thomas is that our encounter with thereality of the natural world in all its glory brings us to life.The other way returns us to a version of a “world populatedexclusively by symbols,” even if these symbols now refer to theworld, not God. It will not do to spend too much time debatingThomistic realism, as the doctrine is called, but understanding



some of the issues involved will help us better comprehend histeachings on the natural law.

According to Aristotle, an exponent of classical realism, themind’s direct knowledge of reality would be impossible if somethird thing intervened. This is why Aristotle makes the intrigu-ing suggestion that “mind is, in a way, all things” (On theSoul, III. 8). Knowledge is not about having an image, or rep-resentation, of something, but rather a process by which theobject enters into the subject. Of course, sticks and stones can-not literally enter into the mind, and so one might argue thatit is an image of the stick or stone that enters the mind. Butthis is a dangerous territory, for the mind is notoriously activein its image making, quickly leaving the doctrine, or ratherthe possibility, of realism—the direct experience of reality—behind. And, if one were to talk about having in mind theimage of an ideal stick or stone, the perfect stick or stone so tospeak, one would have returned to the world of Plato’s forms.That is, one would have left realism for idealism. This is whyRaymond Dennehy seems quite wrong to claim that under real-ism, “knowing occurs when the intellect is able to ‘define’ theobject to itself, when it is able to grasp deskness, say, in the imageof a desk” (Dennehy 2002, 145).4

Thomistic realism is based on Aristotelian abstraction, notPlatonic idealism. To know something, be it sticks, stones, orhuman virtue, is not to know its various instances, but to beable to categorize it according to its cause, in this case whatAristotle calls its final cause. By the term “final cause,” Aristotlemeans the sake for which a thing exists or is done. Like Thomas,Aristotle was particularly interested in the human telos, the finalcause or aim of all human endeavor (Aristotle, Physics, II. 3). Weunderstand something, it enters into us and becomes a part ofus, when we understand what causes it. We know something asfully as possible when we grasp its telos, its ultimate aim. Untilthen, we see, but we do not understand—for we don’t grasp theprinciple by which something acts, be it a tree or a person.

Aristotle believed that the concept of a final cause appliedto both nature and man. Or rather, nature and humans arepart of the same order. As far as the tree is concerned, one can



understand Aristotle as saying that a tree does not develop ran-domly, but according to an internal plan, contained in the tinyacorn that develops into a mighty oak. The plan can, however,be thwarted by external events, such as a forest fire or drought.This is actually not a bad way to think about the developmentof a man or woman as well. Each of us contains within a planfor our full and complete development. The plan is shared withother humans, for the plan is general, not particular; it is aboutwhat makes a fully developed human, not what makes a fullydeveloped you or me. But as with the oak, this plan is readilythwarted by a bad environment. What is this plan? That is thetopic of the next section.

What is it that enters the self when we know? Perhaps theeasiest way to think about an abstract universal, as it is called byfollowers of Thomistic realism, is by means of an analogy with alaw of nature in science. We believe, or once believed, that a lawof nature exists in the real world just as the objects it describesexist in the world.5 Consider, for example, the tendency of anobject at rest to remain at rest unless acted upon by an external(unbalanced) force. To understand the movement of objects,it is not enough to know the movement of particular objects;one must grasp the principle involved in their movement, in thiscase, Newton’s first law of motion.

This is roughly how Thomistic realism understands ourencounter with the particulars of this world. Since there areso many particulars, so many moving objects, so to speak, weencounter them in a sensible manner only when we grasp theirprinciple, the law under which they can be placed. For physicalobjects in motion or at rest, it may be the principle of inertia.For a man or woman living his or her life, the principle is thesame. There are so many men and women, living so many differ-ent lives, that we must ask ourselves, “toward what final shapeor end is this person’s life moving, and does it accord with a fullydeveloped human life? That is, does it accord with the humantelos?” Most of us, by the way, would be better off spendingour time asking this question about our own lives, rather thanthe lives of others, though exemplars—good and bad—can helpus answer this question about ourselves.



Troubling is the tendency of Thomistic realism to lose itsfascination with strangeness, as well as its capacity for wonder.From a belief that realism is unconcerned with particulars, andonly with the general form of matter (a view akin to scientificgeneral laws), it is evidently all too easy to end up holdingthe view that “matter is the enemy of knowledge” (Dennehy2002, 145). Viewing Thomistic realism in this fashion losesmuch of what is gained by his project. However, let us be clearthat not only is that last short step never taken by Thomas, butaspects of his work stand against it. The most important barrieris Thomas’s adoption of another Aristotelian category of causes,formal cause.

By the term “formal cause,” Aristotle referred not to whatwe today would call a cause at all, but to the structural funda-mentals shared by all elements of a class.6 These may be quitesubtle. Martha Nussbaum explains the concept of formal causethis way.

But in the case of living things, it is very clear that to explain behav-ior we must refer not to surface configuration, but to the functionalorganization that the individuals share with other members of theirspecies. This is the form; this, and not the shape remains the sameas long as the creature is the same creature. The lion may change itsshape, get thin or fat, without ceasing to be the same lion; its formis not its shape, but its soul, the set of vital capacities, the functionalorganization, in virtue of which it lives and acts . . . . A corpse has thesame shape as a living man; but it is not a man, since it cannot per-form the activities appropriate to a man. When I ask for the formalaccount of lion behavior, I am not, then, asking just for a referenceto tawny color or great weight. I am asking for an account of what itis to be a lion: how lions are organized to function, what vital capac-ities they have, and how these interact. And it is this, again, ratherthan an enumeration of its material constituents, that will provide themost simple, general, and relevant account for the scientist interestedin explaining and predicting lion behavior.

(Nussbaum 1978, 71)

Thomas applies the concept of formal cause to man much asNussbaum does to a lion. What is it to be a human? We are



not asking just for a description of a being that eats, copulates,gives birth, raises its young, and dies, though these facts arerelevant. We are asking what it means to live a fully human life,and the conditions required to fulfill it. This is the concern ofthe natural law.

Is it worthwhile distinguishing between formal and finalcause, what is usually called a telos?7 Not necessarily. The for-mal cause refers, as we have seen, to the essential nature of thebeing in question, abstracted from its superficial and contingentcharacteristics. The final cause refers to the purpose for whicha being exists, and again a distinction can be drawn betweenthe superficial and contingent characteristics of a being, and itsultimate end, the telos. In fact, there is very little differencebetween formal and final cause. Or rather, when we know one,we know the other.

The identification of formal with final causes is not vacuous. It is to say,about a developing entity, that there is something internal to it whichwill have the result that the outcome of the sequence of changes itis undergoing—if it runs true to form—will be another entity of thesame kind.8

In this case another lion. The final cause, the sake for whichsomething exists, is embodied and expressed in its formalcause—that is, its fundamental structure, the only way in whichwe can know its true purpose. This is as true for a man orwoman as a lion.

For all its formality, Thomistic realism is particularly usefulin understanding how love can lead us to know the naturallaw. Like knowledge, love wants to become adequate to whatit knows, to receive its lover’s imprint. Love has the qualityof realism. Love is realism, a claim that may surprise, giventhe romantic, idealistic connotations of the term. Love, how-ever, goes a step further, wanting to become what it knows,all without losing its tantalizing distance and difference fromits beloved. For what is love without difference between desireand its object? More on this topic follows in the discussion ofconnaturality in the next section.



Thomistic Natural Law

For Thomas, natural law is the way in which humans participatein Eternal Law, which is God’s law, the reason of the Rulerof the Universe (ST I–II, 91). Yet, good Aristotelian that heis, Aquinas argues that because natural law is in accord withtutored human nature, not contrary to it, one can know thenatural law and act in accord with it simply by being broughtup in a decent human community. Or as Hugo Grotius (orig.1625) put it four centuries later,

What we have been saying [about natural law] would have a degreeof validity even if we should concede that which cannot be concededwithout the utmost wickedness, that there is no God, or that the affairsof men are of no concern to Him.

(Grotius 1964, Prolegomena, II)

Peter Kreeft (1990, 505) puts it more simply: “St Thomaswould disagree with Dostoyevsky’s saying, ‘If God does notexist, everything is permissible.’ ” In other words, knowledge ofthe natural law does not depend on knowledge of eternal law.Kreeft elaborates, “When an atheist knows that theft is wronghe in fact knows something of the eternal law, but he does notknow that it is the eternal law” (511). One can know the rightthing to do, one can feel it in one’s bones, without knowingwhy. The natural law frequently has this quality.9

For Aquinas, the founding principle of the natural law isdeceptively simple: “Good is to be done, and evil is to beavoided” (ST I–II, 94, 2). “Do good, avoid evil” might soundlike a tautology, true by definition. Some new natural law theo-rists, such as John Finnis (1980) and Robert George (1999),argue that it is. Whether or not “do good, avoid evil” is atautology as a stand-alone premise, Aquinas quickly fills it in,giving content to the good. Doing good includes fostering thefollowing human goods:

Preserve human life and avoid its destruction.

Foster marriage and the sound upbringing of children.



Educate and care for the children.

Preserve community and avoid giving unnecessary offense to others.

Respect private property except in exceptional circumstances, such aswhen the community is starving, and what food that remains is in thehands of speculators who are hoarding it, waiting for prices to rise.Then the community is justified in treating the property of individualsas though it belonged to the entire community as it once did.

(ST I–II, 94, 2)

How Thomas argues

Thomas argues along two tracks that almost converge. The first(and dominant track) compares the operation of the practicalintellect, which knows right from wrong, with that of thespeculative intellect, which knows conceptual or intellectualfundamentals by virtue of the way the mind is built. An examplewould be knowing that the whole is greater than any one of itsparts. This speculative knowledge of first principles, as Thomascalls them, is bestowed upon us by nature, but it is not merelyinnate (ST I–II, 51, 1; 76, 2; 79, 12).10 Our minds grasp thisfact about the world because this is the way the world is; we donot impose this fact upon the world with our minds, as modernswould have it.11

Thomas assumes that all men and women seek the good, orthey wouldn’t bother seeking it in the first place. They wouldn’tbother getting out of bed in the morning. The problem isn’tthat men and women don’t seek the good; the problem is thatmen and women are frequently mistaken about the good. Thatis, they think something is good for them, but it isn’t, whetherit is an extra helping of dessert or an extramarital affair. Since allmen and women seek the good, the first principle of practicalreason is “do good, avoid evil.” This principle has roughly thesame status as the principle of noncontradiction in speculativereason: the same thing cannot be affirmed and denied at thesame time. Similarly, people cannot want the good and the badat the same time. Being people who seek happiness, they wantthe good (ST I–II, 94, 2).



If one brings this first principle together with an indisputableempirical fact, that humans have bodies, then one arrives atthe leading assumptions of the natural law. Since each humanseeks to preserve his or her own being, because that is good,Thomas concludes that “according to this inclination, thosethings pertain to the natural law by which man’s life is pre-served” (ST I–II, 94, 2). In other words, natural law leads manto preserve life; first his own, and then that of others.

It’s easy to see how Thomas would be led to the conclu-sion that humans seek to preserve their own lives, because theirown lives are good. But how does Aquinas so quickly reach theconclusion that it is equally good to preserve the lives of oth-ers? Because Aquinas isn’t Thomas Hobbes, for whom fear ofindividual death is the greatest fear a man or woman can expe-rience, and security the greatest blessing (Leviathan, c. 13). ForAquinas, the good isn’t just my life. The good is life, because lifeis not merely a private possession, but a shared good (ST I–II,94, 2). Under the natural law, individuals do not come togetherto sign a contract to guarantee their own security. People beginlife together experiencing the same good, a life lived amongother lives. Toward some we feel love, toward others friendship,and toward most we feel amity and shared community. This isthe “original position,” if one wants to use language that doesnot truly apply to Thomas, because there is no social contract,only community.12 This explains how Aquinas segues so seam-lessly from the injunction to preserve human life to marriage,to the upbringing of children, to their education and care, tothe fostering of community. The ingredients, the relationships,are all there from the beginning, in the very first life, becausethe first life was never lived alone, and not even with the firstAdam or Eve, but in the first community. This, at least, is theimplication of Aquinas’s reasoning.

One could say that all the principles of the natural law leadback to the single original insight that has virtually the status ofan axiom: “do good, avoid evil.” But that would not be correct.The principles of the natural law lead back to that axiom, butgain their force only when combined with the natural fact thatmen and women are rational embodied beings who want to live



together, bring children into the world, foster society, and knowthe good; beings who value not only their own lives, but lifelived with others in family and community. Thomas concludesthat Christ’s teaching, “love thy neighbor,” is a principle of thenatural law, known through nature (ST I–II, 100, 3, 1).

Not all of the natural law falls under these self-evident prin-ciples, which everybody can know. “Every man judges instantlyof its own accord” that one must not murder. But not every-one knows without being taught that it is right to respect theaged. And, about other things, such as not to take the name ofthe Lord in vain, Divine (i.e., biblical) instruction is needed, forthat knowledge is not strictly natural either (ST I–II, 100, 1).

About such basics as murder, theft, adultery, and the like,once the practical intellect recognizes the nature of human-ity, the nature of property, and the nature of marriage, thenevery rational man or woman will recognize what is morallydemanded in each particular situation. Thomas calls this recog-nition synderesis, the capacity to recognize the principles calledfor in particular situations. Synderesis is a virtually universalcapacity. Conscience is the way we apply synderesis to particularcircumstances.

An example may be helpful, one that points out that whilenormal humans cannot err regarding the first principles of thenatural law, for instance, that it is wrong to debase the valueof human life, it is possible to err in particular circumstances,and over a long period of time. The reason long-term erroris possible is that natural law is applied according to what iscalled a practical syllogism, with major and minor premise. Wedon’t think about it this way because it appears so simple, butthe act of applying the natural law can be reconstructed in thefollowing fashion:

A. Do good, avoid evil. (This is a major premise, for it is always alreadyknown. While it is a conceptual truth, like the whole is greater thanany one of its parts, its truth also depends upon the nature of theworld; this is implicit in Thomistic realism.13)

B. Do not murder or otherwise degrade and debase human life. (Thistoo is a major premise, not strictly a conceptual truth, but known by



all rational human beings because we are embodied, and able to feelthe suffering of others like ourselves, a point elaborated shortly. Thisis the basis for our knowledge of the truth of “love thy neighbor asthyself.”)

C. Do not practice segregation by race or any other invidious dis-tinction, as it degrades and debases those against whom it is directed.(This is a minor premise in the practical syllogism, and it is possiblenot just for individuals, but for entire societies, cultures, and histori-cal eras to get this wrong, generally because they fail to recognize thefull humanity of those against whom segregation or other demeaningpractices are directed.)

Here is why the natural law is so often violated, even thoughpeople know (indeed, cannot avoid knowing) its principles.I have suggested that entire societies may fail to recognize thefull humanity of others, but Thomas comes closer to the truthwhen he refers to the “evil disposition of nature” that may liebehind this failure of recognition.

We may say that as to the first general principles the natural law isthe same for all both as to rectitude and to knowledge. But as tocertain particulars which are, as it were, conclusions of these generalprinciples, it is the same for all in most [cases], both as to rectitude andas to knowledge; yet in a few cases it can fail both as to rectitude . . . andalso as to knowledge, since some people have a perverted reason dueto passion or due to evil habit or due to an evil disposition of nature;thus, as Julius Caesar recounts in The Gallic Wars, formerly among theGermans theft was not considered wrong even though it is expresslycontrary to the natural law.

(ST I–II, 76, 1)

Not just ignorance, but a perverse disposition, reason havingbecome wicked, may actually encourage someone to improperlyapply the natural law. But even in this worst case, Thomas isreferring to application, the minor premise, the realm of con-science, not the major premise, the realm of the knowledgeknown as synderesis. In other words, someone can so misun-derstand the minor premise that it reaches back to pervert themajor premise as well, insofar as he or she fails to understand



that stealing is stealing when you steal from X, and murder ismurder when you murder Y.

During corrupt eras, in which entire societies practiced seg-regation, for example, it was almost always the case that somepeople saw and stated the truth of the natural law. Some peo-ple acted on this truth. They lived their conscience. Call thesepeople civil rights workers, or simply ordinary citizens wholived according to the natural law. In any case, those who prac-ticed segregation did not operate in a moral vacuum; they werepresented with other voices, other choices that they chose toignore. For this reason, segregationists were morally responsiblefor their acts of omission and commission, even if, for exam-ple, a white person simply grew up in the segregated AmericanSouth and participated in the system without objection. “AsThomas explains, if conscience errs from an ignorance that iseither willed directly or willed indirectly through negligence,then it does not excuse the will” (Doolan 2001, 139; ST I–II,19, 6).

Connaturality and love of knowledge

Less frequently addressed—at least until Jacques Maritain madeit the centerpiece of his reinterpretation of Thomism—Thomasargues that we may know the natural law through a processcalled connaturality, a practice to which he gives several names,such as “affective cognition” (ST I, 64, 1; ST I–II, 97, 2, 2)and “judgment by inclination” (ST I, 1, 6). Connaturality is atype of wisdom that stems from love (amor) of goodness that isitself a gift of the Holy Spirit (ST II–II, 45, 2). However, it isnot difficult to interpret connaturality in a more secular vein.

Connaturality, Thomas argues, is a type of love of friendship(amor amicitiae) that is characterized by a mutual indwelling(mutua inhaesio), in which the thing known exists somehow inthe lover, and the lover in the thing known (ST I–II, 28, 2).Seen from this perspective, connaturality is the complete real-ization of Thomistic realism. In speculative reason, I receive theform of the object and so virtually become the object, much asAristotle describes. In affective cognition through connaturality,



the process is a two-way street. When the heart of the one wholoves to know melts like the heart of the lover, the one wholoves to know not only becomes open to the other, he becomesliquid (liquefacto) himself—able to take the form of the other,as a fluid takes the form of its container.

If Aquinas sounds more like a poet than a philosopher here,then a couple of concrete examples may be helpful. In lovingmusic, one understands music most profoundly by becomingmusical. In loving honor, one understands honorable actionsbest and most thoroughly by becoming honorable.14 I knowsomething or someone best when part of me becomes aninstance of the other. As far as human love is concerned,I become the other while remaining irredeemably myself. Hardto explain; anyone who has fallen desperately in love will knowwhat I mean. Maritain develops this line of thought furtherunder the category of amour fou, or mad love.

Connaturality is perhaps best understood as the habit of trulygood men and women, who naturally love what is true andright, want to do it, feeling joy when they do so. Connatural-ity does not seem to require the Divine inspiration of the HolySpirit, though such inspiration may be a great help. The advan-tage of connaturality is that it is immediate. One does not haveto think; one knows the right thing to do, and loves to do it.Taki Suto (2004) explains connaturality this way.

The perfect use of reason in moral knowledge is to deduce the conclu-sion of a practical syllogism having a principle of the natural law as itsmajor premise. Moral knowledge obtained through connaturality, onthe other hand, merely says “Do this” or “Do that” but does not ask“Why” at the moment of obtaining the knowledge. The connaturalknowledge, however, embodies the principles of natural law in somemanner and, because of this fact, the agent would be able to explainwhy he did what he did, if he were asked later, either by himself aloneor with the help of instruction by someone else. Moreover, this sortof knowledge plays an important role in our daily moral life. Thanksto this knowledge, we can accomplish morally right actions withouthesitation, immediately, reliably, and even with pleasure. For instance,the action of saving a drowning child sometimes may come too lateif one deliberates about the importance of life, the emergency of the



situation, his swimming ability, or the danger involved in rescue. Theaction could be effective only with immediate and almost automaticdecision and exercise. The perfect use of reason does not ensure theexecution of the action, but connatural knowledge does since it isthe appetitive element or the desire that makes the very knowledgeavailable for the agent. (64)

Because actions taken under the influence of connaturalitycan be discussed and explained under the practical syllogism,connaturality and the practical syllogism reinforce each other;indeed, they need each other—connaturality, which might bestbe translated today as moral intuition, serving to provide thepractical syllogism with an intuitive and loving boost.

As importantly, we see that in addition to loving what is goodand right, good men and women love knowledge; not nec-essarily abstract intellectual knowledge, for that is a matter ofpredilection and ability, but avoiding willful ignorance of all thebadness in the world. To ignore (i.e., be willfully ignorant of)the suffering of others, the hurt and disrespect to others’ feel-ings that seems built into so much of everyday life, that tooruns counter to the natural law, which tells us to open our eyesand look around. Pursuing sociability and knowledge, require-ments of the natural law, obliges us to look around at what ishappening to others (ST I–II, 94, 2).

One can reduce Aquinas’s teachings to three lessons, even ifthat is not the whole story:

Preserve lifeParental responsibility for rearing and educating childrenPursue knowledge and sociability

About the last lesson, Howard Kainz (2004, 22) says that “thismight be interpreted minimally as social consciousness, maxi-mally as love.” Love not only of others, but of the knowledgeof what others are going through. In one version of the leg-end of the Holy Grail, the vessel belongs to the seeker who firstasks its guardian, a king paralyzed by a painful wound, “[w]hatare you going through?” (Weil 1977, 51). That knowledge



requires paying attention to others. Attention turns us fromourselves, opening us to the experiences of other people. Onemight almost call that love. Certainly it is a form of knowledgetoo little practiced.

Here we see the irrelevance of an objection by Leo Strauss,directed against Thomas. Strauss (1999, 139–159) argues thatThomas’s (ST I, 79, 12) account of how the principles ofnatural law are originally impressed on conscience (syndere-sis) through a direct experience of nature leaves scant roomfor reflective consideration of past experience or practical exi-gencies, no room at all for discursive deliberation in which thewisdom of others might be sifted and weighted, and no timefor prudential self-assessment or inner critique (Schneck 2004,19). In other words, natural law is not only without speech, butbeyond history.

Strauss is mistaken in two respects. First, our knowledge ofbasic goods for Thomas is profoundly social because basic goodsthemselves are social, shared with others, indeed conceivableonly as shared experience. For example, one could never learnwhat the good of preserving community means without yearsof experience living in a community. Indeed, one could neverlearn this good without being able to share in the experienceof generations who have passed this good down to us as cul-ture and institutions. Not just how one learns, but the contentof what is learned, makes a difference in assessing whether it is“discursive.” Or rather, some things are only learned in a dis-cursive manner, no matter how one characterizes the originalencounter with the first principle.

Second, we see that this primary experience of the naturallaw, in its most immediate form, connaturality, while originatingas a singular direct experience of nature, is subject to explica-tion, discussion, and discourse. That the original experience isnonverbal does not mean that it is not subject to dialectic anddiscourse. As Suto (2004, 64) reminds us, one reason we knowthat connatural knowledge embodies the principles of naturallaw is because a person who acted intuitively on this basis wouldbe able to explain his or her act in discourse with others werehe or she called upon to do so. Some would be more fluent at



doing so than others, some would need to be drawn out (whatSocrates called maieutic), but almost all could presumably puttheir intuition into words.

However, the claim that the immediate experience of the nat-ural law is always social, and always subject to the dialectic,remains a little abstract. The original experience of natural lawis perhaps best seen under the horizon of love—not just love ofdoing the right thing, but love of others with whom we live. Inconnaturality they become one.

An obsolete metaphysics?

The most frequent objection to Thomistic natural law is that itrelies on an obsolete, Aristotelian metaphysics, in which one canspeak meaningfully about natural purposes and goals, as thoughhumans have a given nature. Thomas puts it this way in com-paring the connatural love of a heavy body for the center ofthe earth and the connatural love of the knower for the good:“Thus the connaturality of a heavy body toward the center isby reason of its heaviness and can be called natural love. In likemanner, the connaturality of the sensitive appetite or of the willto some good . . . is called sensitive love” (ST I–II, 26, 1). Tothis application of Aristotelian metaphysics to human action,Kai Nielsen (1988) replies,

The natural moral law theory only makes sense in terms of an accep-tance of medieval physics and cosmology. If we give up the viewthat the universe is purposive and that all motions are just so manyattempts to reach the changeless, we must give up natural moral lawtheories. One might say, as a criticism of the Thomistic doctrine ofnatural moral law, that since medieval physics is false then it followsthat natural moral law theory must be false. (212)

The simplest response may be the best. While important aspectsof medieval (read Aristotelian) metaphysics and cosmology arefalse, others remain valid. Nussbaum’s (2001) explication ofAristotle’s concept of formal cause, once we understand thathe is really talking about a subtle typology, one not misled bysuperficial differences and changes, reveals that the concept still



makes sense, even if we might choose to give it a different name.To be sure, final cause is today generally considered bad expla-nation in physics, chemistry, and most of biology, includingevolution (Gould 1980, 19–46).

Even if one wished to ban the concept of final cause from thenatural sciences altogether, it it would arguably retain a centralplace in the human sciences. For what are the five human goodsbut a list of the essential means and ends by which humans areable to realize their final cause, their telos as human beings? It isgood to live all the ages of our lives—from childhood throughold age—in a community of others who care for us, and whomwe will love and care for in return. In this community, we willtake care to respect each other, fostering our own and others’children, protecting the community, while working to provisionourselves and others, but not hoarding our plenty in times ofcommunity distress.

You might say that all this is obvious, and perhaps it is. Ifonly it were practiced more widely. Currently, more than halfthe world fails to follow these basic teachings. You might saythat the meanings of these terms have changed since Thomas’stime. The meaning of these terms changes with every gener-ation. The natural law is no static constitution; there is nodoctrine of “original intent” to be interpreted by a court ofnatural lawyers. The meaning and application of the natural lawwill change constantly—not in its core precepts, but its applica-tion and interpretation. And who will do the interpreting? Thecommunity—you, me, and everyone we know.

Narrative, Reason, and the NaturalLaw: Comparing Stories

Imagine, for a moment, what a spokesman for the German rob-bers might say. Perhaps not the German robbers referred toby Thomas, but a nobler group of thieves and warriors. Thesewarriors live not according to the natural law, and certainlynot according to that great summary of the Decalogue, “Thoushalt love the Lord thy God . . . and thou shalt love thy neigh-bor as thyself” (Luke 10:27). Instead, they live according to



their own fierce ethic, emphasizing death before dishonor, con-tempt for the weak, respect for the strong, striving “always tobe the best.” This last phrase was the motto of the ancientGreek agonal culture, as it is called, a culture in which compe-tition was not so much the highest value, as it was the standardby which all other values were measured. That ancient source-book of Western culture, The Iliad, is exemplary. One might,with considerable corruption of the original intent, transfer thisset of values to a competitive capitalist economy. “Greed isgood,” the mantra of Gordon Gekko, protagonist of the 1987movie Wall Street, is the last stage in the devolution of this ethic.Or so one would hope.15

What makes the Thomistic narrative, and the ethic it embod-ies, superior? One could argue that only it refers to humanity’soriginal experience of nature, but if you do not believe inthat original experience, or do not believe that knowledge ofthis experience is binding, then such an argument is unlikelyto be convincing. A better argument, in this case, is that theThomistic narrative reflects a more complex and subtler set ofvirtues. These include the virtues of a warrior; for, in the realworld in which we live, societies must defend themselves againstattack. The great virtue of the Thomistic narrative, however, isthat it goes on to include a much wider range of human virtues,from caring for children to performing the hard but unglam-orous work of sustaining the everyday life of a community. Thistoo takes courage. Above all, Thomas understands the virtueof misericordia, usually translated as pity. Here is the sharp butsubtle difference that makes all the difference between Thomasand Aristotle.16

Pity, says Aquinas, is grief or sorrow over someone else’s dis-tress, precisely insofar as one understands the other’s distress asstarkly similar to one’s own. “Among the virtues that relate usto our neighbor misericordia is the greatest” (ST II–II, 30, 4).For Aristotle, the corresponding virtue is not pity but mega-lopsychos, the characteristic virtue of the big-souled man, potentenough to confer benefits, sufficiently superior so that he neednever be in a position to receive them (N. Ethics, 1124b-9–10).Or as MacIntyre (1999) puts it,



We recognize here an illusion of self-sufficiency, an illusion shared byAristotle, that is all too characteristic of the rich and powerful in manytimes and places, an illusion that plays its part in excluding them fromcertain types of communal relationships. (127)

Megalopsychos is what the heroic ethic looks like when it isextended from the battlefield to the polis, in this case thecity-state of 5,000 admired by Aristotle, the polis of the kaloskagathos, the beautiful and the good, always the aristocraticideal. Even today, it is hardly a compliment to say of some-one “I pity you.” And yet it is precisely this virtue that Thomaswould foster, both in the giver and the receiver.

For Thomas, only in communities of mutual need can thecare we extend toward others stem from a genuine identificationwith their suffering, what is called pity or compassion. This caremight be called love. Overcoming this blind spot took anothertradition, one centered in Jerusalem, not Athens. In fact, thisblind spot was not completely absent in Athens, even if it waslacking in her philosophers. One of several reasons Antigonewould bury her brother is simple pity for his naked humiliationin death (Sophocles, Antigone, lines 28–32; 422–426).17

The ethic of Aquinas is superior to the heroic ethic becauseit draws on a wider range of subtler virtues, virtues that weavethe citizens of a community together, rather than pretendingto an autonomy that does not exist, the legacy of the Homericwarrior kept alive for millennia. Can I prove this to you? No,but I have characterized the only type of argument that reallyworks in these matters: comparing stories (Levine 1998).

When we ethically judge, praise, or blame—and this applieseven more clearly when we are comparing ethical systems, suchas Thomistic natural law versus heroic ethics, even in its civi-lized Aristotelian version—we are not putting an instance undera universal principle. We do that, according to Thomas, in analmost automatic fashion, when we apply the natural law to aparticular case (and even that I will question). But when weare questioning the natural law itself, particularly the degree towhich it is “natural,” the syllogistic method makes no sense.What universal principle or major premise could we use in



this case? The direct experience of natural law? That would becheating, assuming an experience that is in doubt.

Instead, we are comparing narratives, in which I am tryingto show you that my favorite narrative is a more compellingaccount of life as it is and should be lived than another. Indoing this, I am bringing narrative to bear on your inclina-tiones naturales, as Thomas calls them. By this term, he meansthe tendency of a person to act in accordance with his or hernature (ST I–II, 94, 2). A person’s inclinations are in accordwith his or her status as animal and rational being. Incidentally,I do not follow Jacques Maritain (1951, 91–92) in interpret-ing inclinations (habet naturalem inclinationem) as the way welearn the natural law, akin to connaturality (ST I–II, 94, 2). Itwould be more accurate to say that inclinations are the natu-ral law, or rather its natural basis. In trusting your inclinationesnaturales, I am trusting that my explication will bring togetheryour deepest, but as yet unformed, beliefs about the good life,invoking such categories as pity, community, and the way inwhich acknowledged dependence is a virtue in order to doso. In other words, I am assuming that you know most ofthese things, but that you have not put them together, possiblybecause aspects of our culture and way of life are not conduciveto this knowledge. Just one example: Donald Trump remainson many Most Admired Americans lists.18 We praise goodness,but admire power and wild self-assertion.

At the same time, I am demonstrating that a widely admirednarrative, Aristotle’s Nicomachean Ethics, fails to recognize thisimportant aspect of human existence, standing closer to theHomeric ethic of ancient Greece than is commonly recognized.Trying to show you that my narrative or story actually fitsyour inclinationes naturales about ethics better than anotheris the only way we can possibly proceed at this level. Thereis nothing to deduce that would not assume what is alreadyin doubt, nothing to assert that would remain more than anassertion.

The argument I am making here is not one that wouldhave been likely to occur in the world in which Thomaslived and wrote. The argument here only arises in a world



of competing master narratives, as they might be called, inwhich the question of whether man has a nature to be discov-ered, and if so whether there might be several quite differentways to live out this narrative, becomes a real question. Nev-ertheless, my approach of trying to convince you that mystory about Thomas, misericordia, and the type of communitythat results fits your inclinationes naturales assumes preciselywhat Thomas assumed: reason can be brought to bear onnature.

Narrative and nature

Instead of referring to reason brought to bear on nature, I callit narrative brought to bear on nature. That is, I refer to theway in which Thomas’s account of the human good actu-ally fits your inclinationes naturales—your experiences of thehuman goods, including (but not limited to) the five humangoods proposed by Thomas. “At minimum, a story is a pur-pose transformed into enough experience to allow that purposeto understand itself a little better” (Rosenthal 1987, 13). Theterm “purpose” is another word for telos, the human goal ofthe human good. A good narrative puts together an inchoateinclination with experience, so that we might come to see whatwe have learned by sharing it with others, who will have sto-ries of their own to tell. If we are fortunate, the storytellingwill continue until a tentative, always temporary, collective ver-sion is agreed upon. This is how the natural law develops, evenif we never call it that, but something like “the values of oursociety.”

Why refer to our knowledge of the natural law in terms ofnarrative, not reason? There are several reasons. The first isgiven by the Protestant theologian Reinhold Niebuhr (1988),who argues that Thomistic natural law remains inextricablybound to a medieval worldview, while remaining overconfidentin reason. For Aquinas, The Fall robbed man of grace, but lefthim with reason. For Niebuhr, that is too easy. The Fall cor-rupted reason itself, rendering reason arrogant and self-satisfied.Ours is not an incomplete world yearning for completion. Ours



is a tragic world, filled with arrogance, false eternals, and bogusabsolutes.

In addition to a certain skepticism about reason per se, nar-rative seems the appropriate language to talk about reason. Theuse of narrative that I have practiced assumes that inclinationesnaturales exist, and that they are roughly as Thomas described:basic intuitions about right and wrong that can generally (notalways) be relied upon, especially when they are subject to thediscussion of the community. The process doesn’t always workright, not only when the community shares a perverse dispo-sition (the German robbers), but also when it is demoralized,as my story about the local school board in chapter 1 reveals.One hopes that the cultivation and tutoring of a commu-nity’s intuitions by means of conversations, stories, and sharedwork directed toward the common good (e.g., Habitat forHumanity) would foster a more caring and imaginative soci-ety as well. Richard Rorty (1989, 2001), as we shall see in asubsequent chapter, has great confidence in the ability of novelsto shape the empathic imagination. I do not disagree, but placea greater emphasis on joint activities and shared conversations.These strategies are not antithetical.

Today, we live in a world far more removed from the origi-nal natural experience than in the medieval world of Thomas’sday. This is bad insofar as it renders our culture less conduciveto the collective conversation, stories, and shared work neededto transform healthy inclinationes naturales into a caring andimaginative basis for the natural law. However, it also createsnew possibilities, for instead of one original natural experience,there are several—indeed, almost too many—competing expe-riences of the good life for men and/or women. Consider, forexample, the following stories:

The warrior for a just cause

The committed husband and family man

The committed wife and mother

The man or woman who sacrifices everything for his or her art, orscience



One who suffers discrimination and responds by creating a communityof dignity with others

The secular or religious saint

In light of this cultural caravanserai, the most persuasiveapproach is to tell stories that bring together different expe-riences so that someone might come to say, “Yes, I recognizemyself in that story; I just didn’t realize we were talking aboutthe natural law.” Or, “No, now that I think of it, aspects ofmy experience don’t fit the natural law. But I still value theseaspects, so I’m not sure what to do or say.” This intellectualstrategy, for that is what it is, respects the leading characteristicof the natural law: that we possess it even before we know it.It also respects the intelligence and dignity of those it wouldconvince. As we shall see in the next chapter, Jacques Maritaincame to rely on Thomas in arguing that sometimes the fel-lowship and peace of the community are more important thanwhether the community adheres to the details of the natural law,a point made explicitly by Thomas (ST II–II 10, 11; Maritain1951, 169).

Notice the role played by narrative in this account. Narra-tive does not discover the natural law. Natural law is knownthrough our inclinationes naturales, as Thomas calls them. Nar-rative is how we make these inclinations consciously present toourselves, and so subject to discourse with others. These othersinclude family, friends, community, and history. Important, par-ticularly as we enter into a global world (or rather, becomemore aware that we are already there), is the way in whichdiscourse makes these inclinations available to different commu-nities, including less powerful communities, so that they mighthave a say in the formulation of our inclinations. Even if ourinclinations are at bottom identical, which would not be sur-prising given that they are the substance of the natural law,inclinations may take different narrative form. It is not goodwhen my narrative of the natural law speaks over yours.

Natural law can become a cover for domination even withthe best intent. Edmund Burke illustrates one of these ways,



in which the ancient order is assumed to be tantamount tothe natural order. This from a man who understood and con-demned colonial domination. The school board discussed inchapter 1 suggests another way in which domination may beveiled: when cultural relativism leads to the demoralization ofthe powerful, who become morally paralyzed when confrontedwith indigenous cultures abusing their own.

Inclination doesn’t speak in a single voice, even as it speaksto all. Even if our inclinations are identical (another way of say-ing that every heart is inscribed with the same natural law), wewill translate our inclinations into different stories dependingupon our circumstances. A proper interpretation of the naturallaw for this time and place will make room for the narratives(inclinations put into words) of all those affected by the basicarrangements of society—that is, those arrangements touchedupon by the natural law. If we don’t do so, then we are at riskof ending up like Edmund Burke, a man genuinely committedto the application of natural law to all peoples, but who couldsee almost no difference between natural law and the ancientpractices of his own society.


C h a p t e r 3

M a r i ta i n a n d t h e L ov e f o rt h e N at u r a l L aw

Once called the “Red Christian” for his leftist leanings in lateryears, Jacques Maritain is the twentieth century’s most well-known Thomist. While he might quarrel with the “most wellknown” description for the sake of modesty, Maritain would notdeny the affiliation. Interesting and important is how Maritaincame to Thomas and the natural law, through listening to HenriBergson’s lectures on phenomenology. Indeed, the story goesthat Maritain and Raïssa, his fiancée, had decided to kill them-selves if they could not find a definite answer to the meaningof life. They found it first not in Thomas’s teachings, but inBergson’s.

As the new school year of 1901–1902 began, their search wasrewarded when they crossed the street from the Sorbonne to theCollège de France to hear Henri Bergson lecture. In Bergson’slectures they heard the kernel of the message they had beenwaiting for. For they understood him to say, as Raïssa Maritain(1947) put it, “that we could truly, absolutely, know what is.”Bergson was speaking not of intelligence or reason, but a facultythat he called intuition that was opposed to the intellect and itsconcepts. Jacques and Raïssa married on November 26, 1904.1



Presumably Bergson lectured about what he published in1903, that one could find an absolute nonrational type ofknowledge through intuition.

By intuition is meant the kind of intellectual sympathy by which oneplaces oneself within an object in order to coincide with what is uniquein it and consequently inexpressible . . . . There is one reality, at least,which we all seize from within, by intuition and not by simple anal-ysis. It is our own personality in its flowing through time—our selfwhich endures . . . . What is relative is the symbolic knowledge bypre-existing concepts, which proceeds from the fixed to the moving,and not the intuitive knowledge which installs itself in that which ismoving and adopts the very life of things. This intuition attains theabsolute.

(Bergson 1955, 9–11)

Had Maritain stopped with Bergson, natural law would becomposed solely of intuition, a type of innate knowledge asindubitable as any feeling, such as “I feel sad” or “I feel happy,”but extending no further than the self. Maritain did not stopthere, and while he remains more “Bergsonian” than many nat-ural law theorists would admit, Maritain is best understoodas combining Bergson with classical realism, the belief thatone can have genuine access to the things (sometimes calledbeing) of this world. The experiencing subject is not all thereis. There is something exterior to the subject that is real to beexperienced, and whose experience is valuable, enriching thesubject. Maritain devoted much of his efforts to the impor-tant task of moving from intuition to objective world and backagain. Nevertheless, some of Maritain’s most well-known state-ments about the natural law reflect the influence of Bergson,or at least of Thomas Aquinas as read through Bergson. Notevery interpreter of Maritain would emphasize the influence ofphenomenology as much as I.

In fact, much of what Maritain has to say about intuitionand the natural law is valuable in its own right, and need notbe attributed to Thomas in order to give it the sanction of theAngelic Doctor. The example of “inclination” was mentionedin the last chapter, in which it was argued that Maritain (1951,


M a r i ta i n a n d t h e L ov e f o r t h e N at u r a l L aw 51

90–92) transforms what is for Thomas the medium of the natu-ral law into the intuition by which we know it (ST I–II, 94, 2).They are not the same, and there is no point in pretending theyare in order to suggest a dubious continuity with Thomas. Thecontinuity between Maritain and Thomas is real, but it exists atthe level of shared metaphysical realism, as well as a shared beliefin Providence, God’s presence in history, though precisely howhumans share in divine Providence differs between Thomas andMaritain. Maritain is the theorist who makes natural law anda version of pluralist democracy compatible. For Maritain, itwas a long, hard struggle to embrace the twentieth century.The pull of a medieval resacralized world was strong, but notas strong as his fear of a new pagan order unleashed by Hitlerand Stalin.

Poetry

Maritain was fascinated with poetry because poetry (perhapssurprisingly, given its frequent emphasis on feeling) steers usaway from the inner-world, and toward the shared world ofpeople and things. Poetry is the intuition of (everyday) being.Contrary to a certain stereotype, good poetry takes the exis-tence of people and things seriously. John Hittinger has a lovelyquote from Nathaniel Hawthorne about some summer squashhe planted. While not technically poetry, Hawthorne’s prosecaptures the poetic attitude toward the world that Maritainwould embrace.

Gazing at them, I felt that, by my agency, something worthwhile livingfor had been done. A new substance was born into the world. Theywere real and tangible existences, which the mind could seize hold ofand rejoice in.

Hittinger continues.

Hawthorne surely has the germ of Maritain’s intuition of being inthis appreciation of squash’s “victorious thrust over nothingness”. . . .After witnessing the loss of the world in abstraction, Hawthorne



attends to the lowly squash and savors the glory of its being. Mari-tain, I think, would be delighted to have these prophetic poets returnus to the savor of being as they call forth that intuition.

(Hittinger 2002, 210–211)2

Whereas Bergson understands the intuition of being as theexperience of the subject experiencing the world, Maritaininvolves the experiencing subject directly in the world. Thomasalso turns us toward the world, but he does so via abstractuniversals. Maritain’s realism does not deny abstract univer-sals, but his tone is different, as are his examples. For Maritain,knowledge is the knowledge of the artist.

Differing with Plato in the Republic, who famously held thatthe artists’ access to the truth was third-order, sporadic, andunreliable, Maritain believes that the true artist possesses aninsight into the truth of the object, much as Thomas heldthat the uneducated person may be virtuous. The uneducatedperson may be virtuous, even though he or she does not under-stand virtue, because he or she intuitively knows the right thingto do through the faculty of connaturality (ST I, 6, 3). In arelated fashion, the artist has an intensified sensitivity to theworld, whose little piece of truth he or she grasps through aconnatural union with the art object.

That is poetic experience or poetic knowledge, where subjectivity isnot grasped as an object but as a source . . . . The more deeply poetrybecomes conscious of itself, the more deeply it becomes conscious alsoof its power to know, and of the mysterious movement by which . . . itdraws near to the sources of being.

(Maritain 1944, 387)

Unlike Bergson, who would confine knowledge to the experi-encing self, Maritain would send the experiencing self into theworld, where it is enriched by an encounter with being, whichis best defined as the simple and wondrous things of the world,such as Hawthorne’s squash.

In The Situation of Poetry, for example, Maritain (1955a)writes that the poet’s



Intuition is an obscure grasping of the self and things togetherin a knowledge by union or by connaturality which is not com-pleted . . . except in the work . . . . Here is knowledge that is differentenough from what we commonly called knowledge, and knowledgewhich is not expressible in ideas and in judgments, but which is ratherexperience than knowledge. (51)

Restated somewhat more trenchantly, Maritain writes in Cre-ative Intuition in Art and Poetry that “the content of poeticintuition is both the reality of the things of the world and thesubjectivity of the poet” (Maritain 1955b, 90). Maritain notonly acknowledges the influences of the greater world on thepoet’s subjectivity, but would enrich the poet, including thepoet in us all, by encouraging us to encounter the reality ofthe world with the same immediacy with which Bergson wouldhave us encounter the reality of the self.

Kai Nielsen (1988, 212) says that to treat knowledge of thenatural law as akin to poetry is to “retreat into a kind of obscu-rity that makes philosophical appraisal impossible.” It’s notknowledge, but something else; the type of thing about whichLudwig Wittgenstein (2007, proposition 7) says we must keepsilent. This is incorrect. As argued in the chapter on Thomas,we can compare narratives, in which I try to show you that myfavorite narrative is a more compelling account of life as it is andshould be lived than another. In doing this I am bringing nar-rative to bear on your inclinationes naturales, trusting that mystory brings together your intuitions about the good life betterthan another. Expressed another way, about such matters as thenatural law, philosophical proof is impossible. Not proof, butconsidered reflection—what is ordinarily called reason—is theproper human goal.

What I call considered reflection, Maritain (2001, 22) calledafter-knowledge. “Moral philosophy is reflective knowledge, asort of after-knowledge.” For Maritain (2001, 21), the fact thatnatural law is known through inclination means that “the pre-cepts of Natural Law are known in an undemonstrable manner.”The fact that men and women are unable to rationally justifytheir most fundamental moral beliefs is evidence not of the



irrationality of their beliefs, but, on the contrary, it is evidence“of their essential naturality and therefore of their greatervalidity, and of their more than human rationality” (Maritain2001, 21). The “after-knowledge” of the natural law comes inwhenever we try to systematize natural law—that is, subject ourconnatural intuitions to rational principles. After-knowledgealso comes into play whenever we discuss the natural law withothers, as we should, as well as whenever we look back over timein order to see if our inclinations are to be trusted.

There is something both wonderful and frightening inMaritain’s confidence. About the details of the natural law,Maritain was not so concerned, but about the existence of thenatural law, and the connatural way it is known, he never ques-tioned or wavered. His respect for “after-knowledge” grew too,a development that may be understood in a couple of ways.First, after-knowledge may itself become part of a pluralistic,democratic process. This is the implication of Man and the State(1951). Second, Maritain’s own after-knowledge about how tolocate natural law in a world that had moved from Saint Thomasto Hitler to the Cold War required both intellectual and moraldevelopment on his part. In particular, it required that he rein-terpret his characteristic doctrine of personalism. More on thatshortly. For now, let us devote ourselves to love.

Love

Love and friendship are the highest things in human life,according to Maritain. However, rather than idealizing thatChristian love generally rendered as agape, a mild brotherlylove, Maritain writes of l’amour fou. Agape is the term Christuses for love when he summarizes the Ten Commandmentsas love God with all your heart, and love your neighbor asyourself (Matthew 22:37–41). L’amour fou means quite lit-erally “mad love,” and translated from everyday French intoeveryday English might best be rendered as crazy with love,drawn to one’s beloved as a moth to a flame. Maritain meanssomething only a little different—a type of boundless, limitlesslove, in which I give myself wholly and completely to the other



person with nothing left over for myself. In love, but also inclose friendships, “it is the very person of the lover which is theGift” (Maritain 1984, 221).

Here, says Maritain, resides the great mystery of love, forwhile in love I give myself to the other, somehow I continueto remain whole. I have not lost, but gained. I have aban-doned myself to the other, but not become the other; if I had,then love would be pointless, for there would be no otherleft to love. Love longs for union, but lives on separation anddifference. In love I abandon myself, and in some remarkableway become more myself than I was before (Maritain 1984,222–224). Someone might argue that the feeling of havingabandoned the self, only to have become more oneself thanever before, has the quality of an illusion, as in “that’s only yourendorphins talking.”

Maritain would disagree. Love is not something we create.Love is something we discover; it is part of the “ontological per-fection of nature” (Maritain 1984, 223–224). In other words,love has the status that classical realism would accord to itsobjects. This makes sense; for if we think about the objects ofrealism as relationships between objects, then what relationshipis more real and intense than love? Gravity, I suppose, but thatis reality in another, albeit equally real, dimension.

The fact that love is part of the “ontological perfection ofnature” is ironic, for Maritain believes that most failures in life—certainly the most severe, lasting, and painful failures—are thoseof love. Generally, these failures take the form of loving wrongly(e.g., having an affair while married), betraying a friend, or lov-ing someone or something that is not truly worthy of our love.This includes such obviously unworthy candidates as money,but also some people. Furthermore, even those who are worthyof our love (and this includes most people, for humans are frailand driven creatures, liable to love whom they will) risk beingtransformed into idols if our love is not expressed within theframework of a community whose members care for each otheras friends. Or as Maritain puts it, “[H]uman mad, boundlesslove can radiate within a life morally upright and submissiveto the order of charity. It can likewise radiate . . . within a life



of sin” (Maritain 1984, 224).3 In most cases, the communitywithin which one loves will make the difference. More on thispoint later in the chapter.

It is said that on his deathbed, Saint Thomas taught aboutSolomon’s Song of Songs, a sublime poem of love. Unfor-tunately, no transcription of this teaching survives (almost allThomas’s teachings were transcribed; as was the custom, hedictated to scribes). Maritain, the twentieth century’s greateststudent of Thomas, wrote the last chapter of his last book onthe Song of Songs. One might call it a translation, except thatMaritain read no Hebrew. Instead, he said he wanted a Frenchversion that filled two needs.

As far as it brings to the spirit, I wanted its prophetically Christianmeaning to appear explicitly and markedly enough to satisfy me inprayer. As far as what it brings to the ear, I wanted it to appear tome in the form of a French poem that would spring from a single,continuous thrust, in its incomparable beauty, thus satisfying my needfor poetry better than generally do the literal translations.4

A remarkable aspect of the “translation” is the way in whichit renders love more physical. Five times Maritain translateswhat in the English language versions is usually described simplyas “love,” as “caresses” (Le Cantique des cantiques, 2:5). Fourtimes he renders comparisons between love and wine as compar-isons between caresses and intoxication, once the intoxication ofmad wine (“Le Cantique des cantiques,” 1:2; Dunaway 2002,320–321).

Maritain’s approach to the Song of Songs epitomizes the roleof insight over discursive knowledge in his approach to the nat-ural law. Indeed, his great contribution is to have transformedThomas’s notion of connatural knowledge into creative love.Unlike some of his other “transformations” of Thomas, thistransformation is fitting, for it is in accord with the meaning ofthe term given by Thomas. By connaturality, Thomas means notmerely the immediate knowledge of the right thing to do, butthe habit of wanting, even loving, to do the right thing. Oneis reminded here of Aristotle on virtue (one is truly virtuous



only when doing the right thing is easy and pleasurable), but anexamination of the text reveals that Thomas has the inspirationof the Holy Spirit in mind (ST I–II, 45, 2; Suto 2004).

“Thus art, like love, proceeds from a spontaneous instinct,and must be cultivated like friendship” (Maritain 1974, 41). Inthe same way, we cultivate our knowledge of the natural lawthrough love and friendship. Through love and friendship wedevelop the capacities to creatively give the gift of ourselves,and so move beyond “do unto others as you would have themdo unto you,” a relationship that retains the quality of a socialcontract. Instead, we come to see ourselves, our longing, ourefforts, our caring as the gift we give to others. This is the greatcreative act that almost all are capable of. When we feel this love,then knowing and following the natural law is easy. Not aboutthe details, for as Emmanuel Levinas (1969) has taught us, weshall never know exactly what the other needs, and never be ableto provide it.5 But since the natural law is not about details, butabout the basics, love is often enough to see us through.

Here, by the way, we see that Reinhold Niebuhr is mistakenin arguing that what he calls the Catholic teaching on nat-ural law fails to grant sufficient primacy to love over justice(1988, 244). He is referring specifically to Thomas, but sinceMaritain is the twentieth century’s most important Thomist,and Maritain places love at the very center of his teaching, itis hard to see how Niebuhr could fail to see in Maritain any-thing but the fulfillment of Niebuhr’s own claim that “nothingshort of a complete love in which each life affirms the interestsof the other” is the fulfillment of human freedom in natural law(Niebuhr 1998, 224).

Eros and evil

Sigmund Freud (1930, 108–110) believed that romantic love,Eros, wanted privacy, to be left to itself. In the intensity of theirlove, lovers would possess each other, leaving nothing left overfor the world. Maritain holds that human love, even l’amourfou, ideally takes place within a human community that includesthe love of God.



Knowing our friends, our spouses, or our Redeemer activates the con-natural mode of knowledge that also enables us to imitate the DivineArtist as poets, painters, composers, or even perceptive interpreters.

(Dunaway 2002, 322)

Love, for Maritain, is creative; it wants to build the world, forgehuman links, foster children, family, communities. The mad-ness that l’amour fou shares with Eros is the experience thatabandonment of the self brings—a loss that in the end is a gain.Nevertheless, there is a difference. L’amour fou lacks the selfish-ness of Eros that has been its hallmark since Plato, the terriblesense of incompleteness, finding fulfillment only in possessiveunion with one’s beloved.

Socrates’ mythical account of the parents of Eros capturesthis selfishness perfectly. Poverty (penia) is his mother, Con-trivance (poros) his father. For this reason, Eros is alwayspoor, and far from being sensitive and beautiful, Eros is hard,weather-beaten, shoeless, and homeless, taking after his mother.However, as his father’s son, he schemes to get what is beauti-ful. Eros is bold, clever, always devising tricks to get what hewants (Symposium 203b–e).

Maritain’s l’amour fou is simply mad: mad to create, to giveof itself, to love. Not to possess what it does not have, for in itsmadness, it has all it wants, all that it could ever need: a humanway to find relief from solitude in alienating itself, Maritain’s(1984, 222) interesting term suggests not so much a loss of self,but a loss of selfishness in love. Yet, if Eros and l’amour fou arenot identical, they are similar in an important respect. Repressedby culture and civilization, a not entirely happy prospect (forwhich Freud coined the term “the discontent of civilization”),Eros too is the builder of culture and civilizations. Children,community, society, and culture in all its forms are the productof Eros.

Against Eros, Freud sets the Todestrieb, the death drive,which seeks destruction. In a controversial claim, Freud spec-ulated that in the end the individual seeks his or her own death,but not before inflicting death and destruction on others.6

While Maritain posits no death drive, he understands that



history is providential only from the perspective of eternity.In this temporal world, human goodness remains “joined to aswarming multiplication of particular evils that is the very mys-tery and the very motive power of struggle and progression inmankind” (Maritain 1952, 136). As Maritain writes elsewhere,the devil will contend with Christ for the history of the world.Christ will win, as he must, but the devil will have his due, and“not without losses.” In other words, “the devil hangs like avampire on the side of history. History goes on, nonetheless,and goes on with the vampire” (Maritain 1957, 132–133).7 Itis a vampire we shall never be rid of, a devil the natural law mustcome to terms with. Maritain’s understanding of the dark sideof history, and of the claim this ominous reality makes on thenatural law, reveals him to be a thinker of profound importance.More on this point later.

Personalism

Maritain is a political thinker. His remarks about the devil hang-ing like a vampire on the train of history came in the wake ofthe Second World War, which he experienced as the fall of a civ-ilization, the end of an age that began with the fall of Rome. Totalk about mad love without taking into account the madnessof evil would be to live in a monastery. Maritain was a man ofthe world, and his mature political philosophy was expressed interms of personalism, as the teaching is known. But personalismcame to mean something quite different for Maritain after theSecond World War than before.

For Maritain, personalism means that the human person pos-sesses some measure of wholeness and independence, and hencedignity, prior to any involvement in society, while remainingin a fundamental sense social. The consequence is that humanrights don’t come from states, or politics. Human rights comefrom natural law and are expressed in a personalism that respectsindividuality without idealizing it. Not surprisingly, personal-ists make a big distinction between personalism and bourgeoisindividualism (Amato 1975).8



Much as liberal or bourgeois individualism does, personal-ism regards individuals as having rights, but the argument isdifferent, as these rights stem from seeing each individual asthe incarnation of God. Personalism is utopian, generating asocial ideal that respects individuals without being individual-istic, communalist, pluralist, or theist. If you can imagine quitewhat that looks like, you have a better imagination than I. In anycase, Maritain was clear that the distance between liberalism andpersonalism was shorter than the distance between personalismand any of the other available options, such as Marxism.

As with most utopias, personalism is most useful in gener-ating social criticism, and the social criticism that stems frompersonalism asks us to focus not on ideologies, but on peopleand their particular moral situations, which include the pressureof material circumstances. Personalism does not deny materialreality, claiming only that men and women are not reducibleto it, either through their labor, their consumption, or theirbiochemistry.

Though he has nowhere identified himself as a personalist (asfar as I know), the political thought of Václav Havel (1995) isconsistent with personalism, which embraces individualism anddemocracy, but fears for the loss of human mystery, what oncewas called soul.

The relativization of all moral norms, the crisis of authority, the reduc-tion of life to the pursuit of immediate material gain without regardfor its general consequences—the very things Western democracy ismost criticized for—do not originate in democracy but in that whichmodern man has lost: his transcendental anchor, and along with it theonly genuine source of his responsibility and self-respect . . . . Given itsfatal incorrigibility, humanity probably will have to go through manymore Rwandas and Chernobyls before it understands how unbeliev-ably shortsighted a human being can be who has forgotten that he isnot God.

Another way to define personalism is in terms of the ironicconsequence of bourgeois individualism. Since the Renaissance,the individual has become the autonomous center of freedom,knowledge, ethics, rights, et cetera. But this tears people from



their older, more natural communities, leaving them materi-ally and spiritually vulnerable to the imposition of collectiveforms of society, from the French Revolution to totalitarianism.This process is explained in Maritain’s (1929) Three Reformers:Luther, Descartes, Rousseau, his condemnation of the mod-ern world, a condemnation that he would later lift to somedegree.

Luther creates the solitary individual, the subjective individ-ual, not the person, who saves himself through will. “In theperson of Luther and his doctrine, we are present . . . at theAdvent of the Self,” says Maritain (1929, 18). Because humans,according to Luther, have no capacity for self-reformation, butare entirely dependent on faith, man’s reason is useless, his cre-ativity pointless. All man can do, all he must do, is give himselfover to faith, and he does so as an individual, standing in a sin-gular relationship to God’s grace. But the burden is too much,as both the individual and the Church come to stand nakedbefore the state, and collective forces generally, such as society,ideology, and money. In a word, Luther isolates the deracinatedindividual before his God. Such a creature will prove too weakagainst the simultaneously atomizing and collectivizing forcesof the modern world.

Descartes commits the epistemological error of “angelism.”He assumes that men and women can know as Thomas heldthat angels could know; through direct, unmediated compre-hension, which is inherent in the thinking subject, and indepen-dent of the society and community in which he or she exists.Other errors associated with “angelism” are the assumptionsthat man’s first object of knowledge is his own mind (contrastthis view with Thomistic realism), and that the mind is disem-bodied from the person, and the person from his or her place inthe world.

The result of a usurpation of the angelic privileges, the denatur-ing of human reason driven beyond the limits of its species . . . couldonly . . . lead us to claim for our intelligence the perfect autonomyand the perfect immanence, the absolute independence, the aseity[underived or independent existence] of the uncreated intelligence.



Of that claim, Kant was the socialistic formulator, but the originslie much deeper . . . it remains the secret principle of the break-upof our culture and of the disease of which the apostate West seemsdetermined to die.

(Maritain 1929, 79–81)

Descartes led modern men and women to see nature as nomore than a set of essences that conform to his reason. Modernthought was becoming narcissistically bound to a single way oflooking at being, as though being were the mirror of the mind.For Maritain, this “anthropocentrism” was the central evil ofmodern history, and the eighteenth-century philosophes such asDescartes gave anthropocentrism its full theoretical statement.

All conditions of human finitude—time, space, matter, and nature—became enemies of humanity: everything must be brought underman’s dominance—society, state, religion, and the future. Bolsheviksand Republicans were in varying degrees one in seeking to erectthe city of man, a city in which man, utterly alone, pridefully andunwittingly builds his own hell.

(Amato 1975, 67)

Rousseau frees man from sin and conscience, and creates anature that seems to have that old metaphysical status of anideal, but is actually just empirical: man as he is. To be sure,Rousseau sometimes employed a classical notion of nature thatrefers to the essence and end of man’s being, as in parts of theFirst Discourse. On the other hand, devoid of any real meta-physical sense, Rousseau generally used the concept of natureas a strictly naturalistic trope to describe man’s actual materialand historical situation. “This equivocal use of the concept ofnature . . . produced in all of Rousseau’s thought those funda-mental confusions between metaphysics and naturalism, valuesand science, which had vitiated all political thought since theRenaissance” (Amato 1975, 69). Furthermore, Rousseau comesto see the social contract as having no connection to nature.“Hence it follows that the first author of society is . . . the will ofman, and that the birth of civil law is the destruction of naturallaw” (Maritain 1929, 133).



Maritain sees in Rousseau the culmination of a danger-ous dialectic between individualism and collectivism begunin the last five centuries of the modern world. Individual-ism, spiritually created by Luther, Descartes, and Rousseau,destroyed man’s natural and spiritual ties with other men,leaving him defenseless against the new collectivisms of state,society, economics, and ideology, which began with the FrenchRevolution.9

The goal of both Maritain and Emmanuel Mounier, founderand editor of the journal Esprit from 1932 to 1950, wasto remake the Renaissance, resacralizing the temporal order.(A generation younger than Maritain, Mounier was notMaritain’s student, but was deeply influenced by him.) It won’thappen; a point Maritain eventually came to concede, acceptingnew forms of democratic pluralism. One could put it even morestrongly. In the Western democracies, today we live betweenthe old, dead order and a stillborn new world, unable to breakfree without the God to whom Havel refers, the One whoseexistence reminds us that humanity is not the center of its ownexistence.

Absurdity, Justice, and Knowledge

The risk in the West isn’t just Max Weber’s (1958) iron cageof icy polar darkness and night, a totally rationalized world,in which the last remnant of myth and magic have vanished.The risk is the absurdity engendered by the iron cage. Or asRaïssa Maritain reflected, “I would have accepted a sad life, butnot one that was absurd.” (R. Maritain 1961, 69) In fact, theabsurdity faced by Raïssa is not the worst thing. One has to beable to tolerate some absurdity in this world; not everythingis meaningful, and meaning cannot be found in everything.Absurd cruelty is the worst thing, and humans seem quitecapable of inflicting it gratuitously. It is one of the leading vam-pires of history. Saul Friedländer (1993, 109–111) refers to theRausch, the intoxication of destruction, which seems to haveseized Heinrich Himmler and other Nazi leaders as the goal ofdestroying an entire people came within their grasp.10



Pleasure in destruction, in destroying the innocent and goodbecause it is innocent and good, has a long history. Is thisnot what Milton’s Satan meant when he said simply, “Evil bethou my Good” (Paradise Lost IV, 105–110)? William Blakewas not kidding when he said that Satan gets all the best linesin Paradise Lost. Satan is often an attractive figure, just as evilmay be attractive, and that should be cause for deep concern.Though it was pears and not people that he destroyed, the factthat he destroyed them out of the sheer pleasure in destructionbothered Saint Augustine for years (Confessions II.III.9).11

To be sure, the Holocaust did bring something new to ourknowledge of evil. More precisely put, the evil of the Holocaustis significant not only (and this would be enough) because ofits scale, but because of its rationalization, a rationalization thatin many respects was only apparent. This is captured in RaulHilberg’s (1985) account of the German railways’ (Reichsbahn)schedule of fares to bring “passengers” to the concentrationcamps.

The basic charge was the third-class fare: 4 pfennig per track kilometer.Children under 10 were transported for half this amount; those underfour went free . . . . For the deportees one-way fare was payable; forthe guards a round-trip ticket had to be purchased. (411)

How best to characterize such rational absurdity but with anequation? The devil (or Freud’s Todestrieb, however one wouldhave it) + Max Weber + Kafka = the absurd horror of themodern world.

This absurdity is best addressed by natural law, understoodnot as a rational bulwark against absurdity, but as a narrativesource of meaning to set against the absurd cruelty that threat-ens to make mincemeat of the meaning of our lives. By theterm “narrative source of meaning,” I refer to a story about thesources of human goodness, as well as the evils that threaten thisgoodness. One of the purposes of the natural law is to tell us astory about a good, and hence meaningful, human life, so thatwe have some measure of how far humans can lose their way inmisbegotten search of this ideal. “Evil be thou my Good” means



not simply that one has forgotten the good, or chooses not todo it, but that one has confused evil with good, and goodnesswith one’s own will, which is how Immanuel Kant defines radi-cal evil.12 Natural law also leaves us with some markers—cairnsalong the path—showing us the way back to the good.

Cruelty that is not obviously absurd, but instrumental, alsoexists. Much instrumental cruelty involves means so dispropor-tionate to the ends, victims so irrelevant to the ends (i.e., sodehumanized), that the element of absurdity is not absent. Cer-tainly, this fits one of Albert Camus’ (1955, 29) definitions ofthe absurd: “If I see a man armed only with a sword attack agroup of machine guns, I shall consider his act to be absurd.”Absurdity arises in this case from the disproportion between aman’s intention and the reality he encounters. And, althoughCamus does not mention it, one must conclude that the absur-dity works in both directions. If I see a group of men armedwith machine guns attack and kill a group of civilians, I shallcall their act not only evil and cruel, but also absurd.

What does absurdity contribute? Not so much the desperateneed for explanation. Consider the many explanations offeredfor the murder and mutilation of over 300, and perhaps asmany as 500 old men, women, and children at My Lai inVietnam by U.S. troops under the command of LieutenantWilliam Calley in 1968. Among the explanations are the stressof combat, Lt. Calley’s low intelligence, the fog of war, poortraining and discipline, and that Calley and his men were scape-goats for a failed war and failed military leadership (Olson andRoberts 1998).13 What requires explanation is not the act itself(which can be explained in psychological, sociological, or polit-ical terms), but the place and meaning of such acts in a moralworld. Do not such acts render any claim to a moral orderabsurd—that is, totally out of proportion to the evil and horrorof the world? Such acts need not. Murder, even mass murder,does not render the civil law against murder absurd, and noone thinks it does. But there is something about atrocity on ahorrendous scale that mocks the moral order.

The moral order is restored not by explanation, and notmerely by narratives of right and wrong, though these help.



Also required are acts of justice and punishment that serve to atleast partially restore the dignity and memory of those who weredamaged and destroyed. Through tribunals, or courts of justice,such as the International Court of Justice in The Hague, humanbeings say to each other and future generations that the naturallaw (by whatever name it is called) exists. Humans do not callthe natural law into existence with their acts, but without thesejudicial acts, the new German robbers, by whatever name theyare called, risk causing a new world to become cynical aboutwhat its citizens believe.

“Truth and reconciliation commissions” are a relativelyrecent innovation in the attempt to realize the natural lawin history. It is difficult to make a generalization about theirsuccess, or even how it might be measured. South Africa’sTruth and Reconciliation Commission, established after thefall of the white supremacist government to investigate yearsof government-sponsored terror, is generally considered themodel. Under the South African model, human rights abusersare generally provided amnesty if they testify truthfully totheir crimes. The primary goal is to provide official evidenceof past abuses, in order to establish a historical record as aresource against the forgetting or rewriting of history. Theachievement of a dozen such commissions has been mixed.14

Setting the historical record straight seems, in any case, aneasier task than reconciliation, according to several studies(De La Rey and Owens 1998; Hayner 2001). In March2009, Senator Patrick Leahy and Representative John Conyersof the United States called for a “truth commission” toinvestigate, but not prosecute, alleged crimes of the Bushadministration.

Maritain’s and Mounier’s views were founded not on ques-tions of peace and war, but on a hope for a world in whichthe sacred and religious would infuse and enlighten the worldof everyday life—social, political, and material. In other words,they hoped for a new middle ages (Amato 1975, 146). This wasthe core of their resacralization project. The events of the 1930sand 1940s stripped them of their utopian dreams, and madetheir project historically irrelevant. For all his utopian nostalgia



(applied to Maritain, the term is not necessarily a criticism,merely a description of resacralization), Maritain came to realizethat the real choice was one of defending one part of bour-geois civilization against another: England against Germany, theUnited States versus the Soviet Union.

Is it reasonable to see Germany and the Soviet Union as partof bourgeois civilization? No, certainly not Germany in the ageof Hitler, or the Soviet Union in the age of Stalin, but bothtotalitarian regimes grew out of the crisis of bourgeois civiliza-tion, marked by the liberation of the individual from every formof traditional bondage. The new freedom came with a terribleprice—the terror of normlessness, a type of moral homeless-ness. This led to a willingness to accept new forms of bondageas though they were more benign than the old. Only too latedid the displaced bourgeoisie discover the truth, and perhapsmany were not displeased to find out.

Still suspicious of the liberal democracies inspired by Locke,Rousseau, and Hegel, Maritain came to see the value of thehuman city, as well as the broader need for a free, democraticway of life, which is another way of saying that while Maritaincontinued to hold that a Christian view of life remained thesole inspiration capable of supporting personalist democracy, hecame to see the value of liberal individualism, at least comparedwith its real historical alternatives. By the middle of the twen-tieth century, Maritain was willing to take the modern worldseriously. Hitler and Stalin had seen to that. Personalism, whichbegan joined to a nostalgic vision of the medieval world, wasno more a philosophy of man and society, but a critique thatMaritain could draw on in order to retain some distance fromthe reigning “isms” of the day, including liberalism, with whichhe never made his peace.

Maritain is at his best in critiquing the failure of the mod-ern project, as he does in Three Reformers: Luther, Descartes,Rousseau (1929). Modernity, he argues, sees emancipation asfreedom from nature. And here, of course, he would includeKant (2002, 42–49 [c.1, para. 5–8]) as modernity’s spokesman.“Kant and Rousseau reject any measure or regulation derivedfrom the world of nature because regulations originating from



the natural order of things would destroy the autonomy andsupreme dignity of the person” (Goodreau 2001, 99). Thisis, Maritain believes, not only a false conception of emanci-pation, but a false conception of human rights—that freedommust be based upon obedience to the self if it is to be trulyfree. It is a point he will return to again and again in Man andthe State.

Maritain is at his best in making sense of the natural law bycombining Bergsonian intuition with a commitment to beingin the world that transcends the subjective experience of being.What intuition knows is not just a feeling about the objectsof natural law, such as right and wrong, though it knows thattoo. Intuition knows the objects of this experience, in this casepeople, their relationships, obligations, and duties, seen in thelight of love and friendship, be they neighbors, friends, children,spouses, or even strangers.

Maritain is a student of “many ways of knowing,” as a collec-tion of essays on his work puts it. I am selective in emphasizingintuition, poetry, and love as the leading ways, but many believethat these intuitive ways of knowing are the heart of Maritain’sproject. As Dunaway (2002, 322) states, “Of the many modesof knowing that he so masterfully distinguished in order tounite, I think the quintessential one is connatural knowledge.”Connatural knowledge has the additional advantage of beingthat tangent where Maritain’s epistemology comes closest toThomas. For, in both men, the distinction between knowledgeand action is real, but not watertight; a dialogue within theactor, and with his or her community. As Taki Suto (2004, 65)suggests, while connaturality does not ask “why” at the momentof acting, it embodies the principles of natural law in a waythat is intuitive but not beyond words. Because of this fact,the actor would be able to explain what he did to himself, orto another, even if the actor required the help of another todraw the explanation out. The fact that an act is subject tothe dialectic is a sign that it remains not so much rational, associal, a story about the actor’s place in the community of menand women. This is a large part of what Maritain means byafter-knowledge.



Man and the State

Based on lectures delivered at the University of Chicago in1949—when Maritain had just finished his work with theUNESCO philosophers’ advisory group to the drafters of theUnited Nations’s Universal Declaration of Human Rights—Man and the State is most notable for the limited role it wouldgrant the state. Limited not so much in function, but in moraland representational significance. For Maritain, the key conceptis not the state, but the body politic, an association of associ-ations, what today we call civil society. In one respect, and inone respect only, the state sits on top of these associations, pos-sessing a monopoly on the legitimate use of force. But in otherrespects, the state is simply an instrument of the body politic,having no legitimate interests of its own.

The people need the state for the sake of justice, to protectthem against the privilege of class and other forms of con-centrated power, as well as from the tyrannies of other states(Maritain 1951, 172). These are the proper tasks of the state.Over and over, Maritain tells us that the state is dangerous,that it tends toward absolutism. Over and over he tells us thatthe concept of state sovereignty—indeed of sovereignty itself—is vicious. Applied to the state, it means absolutism. Appliedto the people, sovereignty can only mean something vicious,such as the belief that whatever expresses the will of the peo-ple possesses the force of law. But law is not made by the willof the people, but by the natural law, which grants people theright to govern themselves, and limits the laws they may endorse(Maritain 1951, 48).

By the time he wrote Man and the State, Maritain hadbecome relatively sophisticated about politics, devoting a pageto Saul Alinsky quoting Alexis de Tocqueville to the effect thatif people lose the habit of governing themselves in small mat-ters, they will soon develop the habit of subservience towardpower. “It is, indeed, difficult to conceive how men who haveentirely given up the habit of self-government should succeedin making a proper choice of those by whom they are to begoverned.”15



Today, most of those who write about civil society see it asan adjunct to big government, a place where people can practicethe virtues of self-government and social intercourse with a widevariety of people on a small scale, the better to choose their lead-ers (Putnam 2001). Maritain does not reject that view, as thepreceding quote suggests. The difference is that Maritain is autopian, imagining that in an ideal world the state would witheraway, as its functions devolved among pluralistic autonomousassociations after a long period of state capitalism or socialism(Maritain 1951, 27).

In drawing upon Alinsky and de Tocqueville as his guidesfor a pluralist democracy, Maritain breaks from Thomas. Moreprecisely, Maritain recognizes Thomas’s irrelevance to the mod-ern world unless one breaks from him. “St. Thomas’ viewson the matter call for an historical approach and a philosoph-ical enforcement of the idea of development that the MiddleAges were not equipped to carry into effect.” With the oddterm “philosophical enforcement,” Maritain seems to be mov-ing the locus of connaturality from the individual in communityto the individual in community within historical time. He doesso using Thomas’s own key concept of “the inclinationes ofhuman nature . . . the obscure, unsystematic, vital knowledge ofconnaturality” in history in order to render Thomas more his-torical (Maritain 1951, 91–92). It is in and through history thatconnaturality is expressed and transformed in its expression.While natural law is itself beyond history, we live in an agein which any thinking person must recognize that our accessto the natural law is dependent upon the fact that we aresocial beings living in particular historical circumstances. Oras Maritain puts it, “[K]nowledge of the primordial aspects ofnatural law was first expressed in social patterns rather than inpersonal judgments” (Maritain 1951, 92).

Man and the State establishes the primacy of the socialin the knowledge of the natural law. While natural law remainsthe same, our knowledge of it “develops in proportion tothe degree of moral experience and self-reflection, and ofsocial experience, also, of which man is capable in the vari-ous ages of his history” (Maritain 1951, 94). Though Maritain



does not employ the language of transforming inclinationinto shared narrative, though his philosophical style does notfit comfortably with this formulation, the conclusion seemsmuch the same. It is a conclusion that teaches us somethingabout inclination and narrative as well: their relationship is notsimply one of contained and container, but of conflict andstruggle.

Consider the abolition of legal segregation in the UnitedStates. Segregation was always against the natural law, for rea-sons stated by Martin Luther King Jr. (chapter 1). But formillions of people to learn this required not just individualinsight and intuition, but the civil rights movement, legal deci-sions such as Brown vs Board of Education (1954), and decadesof experience, often costly in terms of lives and dignity. Maritainwould understand what the Marxist theologian Ernst Bloch(1986, xxx) meant when he said that “genuine natural law,which posits the free will in accord with reason, was the firstto reclaim the justice that can only be obtained by struggle.”Maritain would understand that natural law is a potential that isactualized in history over time, and sometimes only throughhuman conflict, which need not always be violent. Indeed,Maritain (1951, 68–69) spends some time discussing Gandhi’sSatyagraha (the power of truth), comparing patience, voluntarysuffering, and the courage that endures, with the ideals of SaintThomas.

On the other hand, Maritain understands that sometimesviolence is necessary. Thomas could simply not imagine “whathas been called l’univers concentrationnaire . . . a nightmare of asociety” (Maritain 1951, 72).16 Maritain criticizes two paths.One is the withdrawal into moral purity, and the other thatof abandoning morality altogether. Maritain recommends thetougher path of making moral judgments in difficult cases withno clear guidance, such as the decisions faced by the FrenchResistance against the Nazis. (Maritain played a leading rolein founding the École Libre des Hautes Études, a university inexile that was the center of Gaullist resistance in the UnitedStates.) Against barbarism, violence is sometimes necessary.While morality and natural law remain, sometimes there is very



little in the way of shared social and historical experience toguide men and women who must make terrible choices, includ-ing killing some to save still others. But what else is there todo? Sometimes nothing, or rather doing nothing, is the worsechoice (Maritain 1951, 72–75).17

While the social is primary, at least in ordinary times, in ourknowledge of the natural law, neither society, nor the state,nor the often esteemed common good is the highest valuefor Maritain. For the “general will,” Maritain has nothing butfear and contempt. Neither is the individual the highest value,as we have seen in Maritain’s discussion of personalism. Thecommon good

is lost if it is closed within itself, for, of its very nature, it is intendedto foster the higher ends of the human person. The human person’svocation to goods which transcend the political common good isembodied in the essence of the political common good. To ignorethese truths is to sin simultaneously against both the human personand the political common good. Thus, even in the natural order, thecommon good of the body politic implies an intrinsic though indirectordination to something which transcends it.

(1951, 149)

The great advantage of this view is that politics, even the com-mon good, can never become an end in itself, because theindividual is not an end in him or herself, not even as he orshe partakes of the common good. The supra-temporal goodof the person, his or her eternal destiny, remains the highestgood. The term “person,” in this context, always refers to anindividual as family member, citizen, worker, and possessor ofan immortal soul, whose fate is more precious than we can everimagine. This is the legacy of personalism in Maritain’s laterwork. Viewing the person in these terms reveals that the stateis not a mere holding company, far less a means, or vehicleof transcendence. Maritain is clear that since the loss of theres publica christiana of the Middle Ages, the unity betweenChurch and body politic must take place within the unity ofthe human person (1951, 160–161). Of paramount importanceis that the “internal springs of conscience” are unified in the



earthly city, and this comes about through their unificationin the human person: citizen, seeker after the common good,and human creature concerned with his or her eternal destiny.(Those who do not fall within this last category, and evidentlyMaritain does not expect it to be many, remain citizens in goodstanding.)

There is nothing contradictory about these roles, as longas we remember the proper place of the state in facilitatingall three. The state serves the person, the Church, and thequest of the soul for eternity by doing well the things statesdo best: the promotion of prosperity, the equitable distributionof the material things that are the support of human dignity,and the effective guarantee of a just and legal order. Justice,within the framework of what we would call the welfare state, isthe proper contribution of the state to its citizens. For the stateto do more, for the state to foster religion, can only threaten cit-izen and Church. Recall that Maritain is writing in the shadowof totalitarianism, which he regards as an idol, a “spurious Godof the lawless Empire bending everything to his adoration”(1951, 187). Far from favoring the state sponsorship of reli-gion, Maritain sees its overwhelming danger—the state alwayseager to extend its influence. Not a religious state, but a statereligion, is how he would see their entanglement as likely toturn out.

Yet it is not quite so simple as that for Maritain either.“The inspiration of the Gospel . . . passing into the sphere oftemporal existence [is] the very soul, inner strength, and spiri-tual stronghold of democracy” (1951, 176). For it is Christiandemocracy, that is, a democracy fully aware of its own sources,that keeps alive the values of human dignity, equality, justice,and freedom. It is in this regard that Maritain is particu-larly excited about the relationship between Church and statein postwar America vis-à-vis secular Europe. “Sharp distinc-tion and actual cooperation, that’s an historical treasure, thevalue of which a European is perhaps more prepared to appre-ciate, because of his own bitter experiences. Please to Godthat you keep it carefully, and do not let your concept ofseparation veer round to the European one” (1951, 183).



Unfortunately, Maritain does not seem to fully understand theAmerican experience, imagining, for example, that the U.S.Constitution is a “great political Christian document” (1951,183–184).

Though the religious beliefs of the founding fathers werediverse and complex, many are best described as Deists, pro-ponents of a religious-philosophical view closely associated withthe Enlightenment. Thomas Jefferson was a Deist, referring fre-quently to “nature’s God.” So too was James Madison, theman most closely associated with the authorship of the Con-stitution. The other religious tradition running through thedocument of 1787 was a Puritan Calvinism, best captured byJames Bryce’s (1995) comment that “someone has said that theAmerican government and constitution are based on the the-ology of Calvin and the philosophy of Thomas Hobbes. Thisat least is true that there is a hearty puritanism in the view ofhuman nature which pervades the instrument of 1787. It is thework of men who believed in original sin . . . .” (306). This doesnot quite seem to be what Maritain had in mind.

The cliché has it that Thomas baptized Aristotle, meaningthat he accepted Aristotle’s view of man as containing an inbornnature that aims to unfold itself into a rich and full human beingif given the proper direction and support. To Aristotle’s natural-ism, Thomas added the supernaturalism of Christianity. Man’sultimate telos concerns his eternal soul. But Thomas did notdisembody that soul (the term used in the Greek Testament,pneuma, which also means the breath of life, suggests this), andneither does Maritain. The latter’s great achievement is to takeThomas’s vision and make it compatible with a pluralistic demo-cratic politics. He does so by coming to understand the real, butlimited, role of the state. This required that he first develop ahealthy fear of the state. He was at the right time and the rightplace to do so.

The Soul’s Freedom?

Maritain insists that the great error of modern thought, epit-omized, but hardly begun, by Kant, is to insist that freedom



requires humanity’s consent to nature. And yet some of whatMaritain says about the soul could be read as a return to a typeof Kantian individualism, in which the self-determining char-acter of the person (his or her autonomy) is the source of hisor her dignity (Kant 2002, 42–49 [c.1, para. 5–8]). The state-ments that Maritain makes to this effect are puzzling becausebehind Maritain’s criticism of Luther, Descartes, and Rousseaulies a critique of Kant. Indeed, all that is wrong in these thinkersculminates in Kant (Maritain 1929, 4). For Kant, I possess free-dom and dignity when I follow no other will but my own—thatis, when I freely consent to follow only those laws that I wouldrationally give to myself, were I my own legislator. Consider thefollowing statement by Maritain, which he does not intend ascriticism.

The human person possesses rights because of the very fact that it is aperson . . . master of itself and its acts, and consequently not merely ameans to an end, but an end . . . . [What is] the dignity of the humanperson? The expression means nothing if it does not signify that bynatural law, the human person has the right to be respected, and is thesubject of rights, possesses rights.

(Maritain 1986, 65)

To be sure, Maritain is quick to add that a person’s rightsare balanced by his or her duties. However, Maritain groundsboth rights and duties in human autonomy, which he sees as areflection of God’s freedom in creation. Furthermore, Maritainclaims that “the notion of right is even more profound than thatof moral obligation,” because freedom is as fundamental to manas to God (Maritain 1986, 65).18

Isn’t Maritain making two claims at once; claims that, whenpushed to their limit, must conflict? On the one hand, Maritainsees human freedom and obligation as derived from the naturallaw. Humans do not have rights because humans have rights.Humans have rights, and obligations, because they participatein an ideal larger order that we call the natural law, in whichhuman freedom is given its place. On the other hand, Maritainstarts out by claiming that the human person possesses rights



merely by virtue of being a person, that possessing rights isthe mark of human dignity, because it is the mark of humanautonomy and creativity, a quality we are granted by, and sharewith God. Robert Kraynak (1998, 74) concludes that “unlikeThomas, Maritain seeks to blur the distinction in rank and toenhance the status of man by giving him personhood akin toGod.” Akin to God, because creativity is the mark of Divineagency.

Read in the context of Maritain’s work as a whole, Kraynak’sclaim is extreme. Recall Maritain’s identification of creative loveas the source of connaturality. Maritain assumes that relation-ships such as friendship and marriage inspire the connaturalmode of knowledge, and it is this knowledge that enables usto imitate the Divine Artist in all the ways that humans may becreative, from the traditional forms of creativity known as art,poetry, and music, to the less traditional, such as the creativ-ity required to bring a lost and lonely child out of its shell—thecreativity of teachers and cultural workers of all kinds (Dunaway2002, 322). Indeed, one suspects that all good friendshipsare warmed by the creative adaptation of the partners to eachother’s needs. Maritain, it is clear, is not talking about usurp-ing the role of the Creator. Instead, he sees creativity as onemore thread that binds the human world together, one morespark that grants us access to the intuitive knowledge of thenatural law. Contrasting images, but in this case, threads andsparks go together.

Kraynak’s criticism is extreme, but his insight remains valid:a modern conception of freedom has crept into Maritain’s pol-itics. It has done so because Maritain came to terms with theliberal democratic state, because Hitler and Stalin gave him noother choice, because personalism as a political philosophy (asopposed to a political sentiment) was a dead end, and becauseMaritain’s experience with UNESCO philosophers who advisedthe drafters of the United Nations’s Universal Declarationof Human Rights taught him that there really was universalagreement on the rights of man, even if the philosophers dif-fered, often significantly, on the reasoning behind these rights(Maritain 1951, 77; Glendon 2001).



Common law natural law

But, you say, what difference does this empirical fact of uni-versal agreement make? The natural law is not redeemed byvoting, just as the general will is not redeemed because every-body happens to will the same thing. True enough, but theexperience Maritain gained working with scholars from all overthe world, including Asia, Africa, and Latin America, seemsto have convinced him that the philosophers had done morethan merely vote. The agreement among the philosophers onthe Universal Declaration of Human Rights constituted, saidMaritain (1951, 78), a “grosso modo a sort of common residue,a sort of unwritten common law, at the point of practical con-vergence of extremely different theoretical traditions.”19 Notquite the natural law, this agreement was more than voting. Thisagreement represented that point of overlap, in practice fairlylarge, where different philosophies and religions could agreein practice on what was always right and wrong. “And Godkeep me from saying that it is not important to know” whichphilosophical or religious justification is right, adds Maritain(1951, 78), in an oath that seems designed to reassure himselfthat it really is important to know. For, there is this surprisingpractical streak in Maritain that he himself must, it seems, fightagainst.

A common law natural law? The concept is neither absurdnor heretical, even if Maritain seems to feel he has risked damna-tion to say it. But say it he did, with enough humor to takethe edge off. When a visitor to one meeting of the UNESCOphilosophers’ committee that advised the Declaration draftingcommittee expressed amazement that men of such vastly dif-ferent cultures, beliefs, and ideologies could agree on a list offundamental rights, Maritain says the man was told, “Yes, weagree about the rights but on the condition no one asks us why”(Glendon 2002, 77).

How best to understand this common law natural law? Onehint is provided by the Preamble to the United Nations’sUniversal Declaration of Human Rights, which refers to “theequal and inalienable rights of all members of the human



family” as “the foundation of freedom, justice, and peace in theworld” (Glendon 2002, 310). The purpose of the Preamble,according to its author, René Cassin, was to establish an intel-lectual or philosophical perspective from which to understandthe rights enumerated by the Declaration. That perspective, itturns out, was less that of a liberal document, and more anexpression of

the dignitarian rights tradition of continental Europe and LatinAmerica than the more individualistic documents of Anglo-Americanlineage. Dignitarian rights instruments, with their emphasis on thefamily and their greater attention to duties, are more compatible withAsian and African traditions. In these documents, rights bearers tendto be envisioned within families and communities.

(Glendon 2002, 227)

Though the dignitarian tradition is not the same as personalism,in the end Maritain’s vision came closer to this tradition thanliberalism. This is so even as Maritain’s emphasis on individualfreedom means that the closeness of the dignitarian tradition topersonalism must be qualified. But no matter, the goal is notto label Maritain’s position, but to understand it. In any case,the vaunting ambition of the Universal Declaration, its failureto distinguish rights from utopian ideals in its later articles, isthe topic of chapter 5.

Another aspect of Maritain’s practicality regarding the nat-ural law is how much of the natural law he is willing tosacrifice in order to preserve the common good, by whichhe means the moral traditions and practices of the commu-nity. About the basics, the common law natural law is inviolate.About the details, “civil legislation should adapt itself to thevariety of moral creeds of the diverse spiritual lineages whichessentially bear on the common good of the social body”(Maritain 1951, 169). This is, Maritain continues, an applica-tion not only of the principle of pluralism, but also that of thelesser evil. To make his point, Maritain draws upon Thomas (STII–II 10, 11), who would tolerate the rites of the unfaithful.



To this Maritain adds juridical protection for disparate “ways ofconceiving the meaning of life and modes of behavior,” lest thegreater evil of fanaticism and civil strife afflict the community(Maritain 1951, 169).

If Maritain has journeyed a long way from the medievallongings of personalism, the core insight of connaturality orintuition as the primary means of access to the natural lawremains. What has become clearer as Maritain’s work devel-oped through midcentury is how shared, or social, this processtruly is. Communities in which members tolerate and respecteach other are in a better position to help each other knowthe natural law. One reason is they are likely to be more cre-ative, for many of the reasons theorists of diversity have beenteaching us for several decades now (Parekh 2002). Not sim-ply because diverse views contribute to a richer dialogue, butbecause the deepest insight is often held by those on themargins of mainstream society.

When I was a Fulbright Scholar at a leading university inSeoul, Korea, the question arose as to whether non-Koreans,generally Westerners, should be allowed to teach Korean liter-ature. No matter how fluent their mastery of Hangugeo (theKorean language), some argued, a non-Korean could nevertruly understand Korean literature as a Korean would, a literarytradition that often implicitly assumes a conjunction betweenpersonal suffering and the historical suffering of the Koreanpeople. My position was, and is, that there were things aboutKorean literature that a non-Korean would never understand.Conversely, there were things a Westerner educated in Koreanlanguage and literature would know on his or her first day fac-ing a class of Koreans that a Korean scholar would never know.Sometimes, you have to stand on the outside to know theinside. Openness can be learned, but perspective can only beexperienced, which is why it is good to have many perspectivesaround us, creating many margins, so that we might invite theirdenizens to join us. Why not, I asked, teach Korean literatureclasses with both Korean and Western professors teaching eachclass, either together or sequentially? The eventual outcome of



the debate was murky, a common enough occurrence in Korea.However, does the reader imagine that most colleges anduniversities in the United States would be enthusiastic abouthaving their core courses in Western civilization co-taught byan imam?20 (I refer, of course, only to those colleges and uni-versities that still care about transmitting the great tradition inthe first place.)

For Maritain, connaturality is also conviviality, in the literalmeaning of the term: sharing a feast together, the feast of life,in which we are all hosts and guests. So that our narratives aboutour inclinationes naturales are more likely to reflect the naturallaw, less likely to reflect the prejudices of time, place, class, race,sex, and so forth, it is a good idea to invite people with diversebackgrounds to the table. It is good to listen to and make aplace for their stories, which will likely overlap as well as con-flict with our own. Though they came from all over the worldspeaking different tongues, the UNESCO commission advisingthe authors of the Universal Declaration of Human Rights builtno Tower of Babel, but created instead a widespread consensuson the basics of human decency.

The degree to which communities sharing very little inregard to philosophical and religious fundamentals are able, ifthere is goodwill on all sides, to agree upon a common law nat-ural law seems to have surprised, pleased, and even threatenedMaritain. “Threatened,” for if others could arrive at similar con-clusions from vastly different premises, or so Maritain seems tohave believed, then perhaps premises are not as important asconclusions in thinking about the natural law. If, however, weunderstand that pluralism is the direction in which Maritain’spolitical work was leading since the Second World War, that plu-ralism and civil society are really the keys to his later work, thenthis result should not be surprising. Or rather, only in retro-spect is it surprising, for in the beginning it was hard to imaginewhat the consequences of these two forces might be for thenatural law.

Far from rendering the natural law obsolete, pluralism andcivil society render the natural law more alive, while openingus to the possibility that the way we justify the natural law may



be less important than the fact that we feel it. But this way ofthinking was always with Maritain, as it was with Thomas. Itis simply hard to know what to do with connaturality, particu-larly when it becomes subject to the dialectic—the influence ofothers in dialogue over time. But did anyone really imagine thatit worked any other way? Or rather, that it could?


C h a p t e r 4

T h e N e w N at u r a l L aw a n dE vo l u t i o n a r y N at u r a l L aw

For a group of philosophers today, often called the philosophersof the new natural law, the solution is to lift natural law outof nature entirely. The problem, at least the stated problem towhich the new natural law is a solution, is the desire to freenatural law from “Hume’s Guillotine,” as the difficulty is some-times known. An unbridgeable gulf between statements of factand statements of value exists, as David Hume (1711–1776)pointed out. For instance, from the fact that there are lots ofhungry people in the world, and the fact that there is lots ofsurplus food, I am not logically compelled to conclude thatthe hungry should get this food. In fact, I am not logicallycompelled to conclude anything. What I should do is a moraldecision not determined by the facts alone.1

Of course, if one assumes that humans view the world asa moral experience from the beginning of life, so that theoriginal experience is not, as an equation, “there are hungrypeople” + “there is lots of extra food,” but “people are star-ving, I must do something,” then Hume’s problem does notappear in the first place. In fact, this is essentially Hume’s ownposition, a point that is often overlooked.



Hume objects to the attempt to derive “oughts” (or should-statements) from statements of empirical fact. Hume does notobject to attempts to derive “oughts” from statements aboutfeeling. On the contrary, he believes that certain moral feelings,such as revulsion against vicious tyrannies, possess the status ofmoral certainties. It is to this example that he refers when hestates that “the general opinion of mankind has some authorityin all cases; but in this [case] of morals it is perfectly infallible.Nor is it less infallible because men cannot distinctly explainthe principles on which it is founded” (An Enquiry Concern-ing the Principles of Morals, III, 2, 9). Indeed, it is statementssuch as this that led Frederick Copleston (1959, v. 5, 34) toportray Hume as a virtual natural law theorist. However, that’snot quite right either. Hume is a moral sense theorist, holdingthat our “ ‘oughts’ can indeed be reliably engendered by inter-nal sentiments, common to the majority of humankind” (Kainz2004, 73).

Moral sense theory is a form of ethical intuitionism, whichassumes that a moral sense provides guidance in much thesame way as other senses, such as sight, provide guidance. Oneadvantage of moral sense theory is that it explains how we may“know” that something is right or wrong, but not be able toexplain it, just as we may not be able to explain why somethingis ugly or beautiful. Moral sense may be the foundation of thenatural law, but it is itself too inarticulate, undeveloped, andwithout systematic content to be the natural law.

It is the exemplary natural law theorist Thomas Aquinas whodefines the prime principle of natural law as “do good, avoidevil” (ST I–II 94, 2). For some of the new natural law the-orists, such as John Finnis (1980) and Robert George (1999),the statement is strictly analytic, true by virtue of the way we usethe terms “good” and “evil.” Seen from this critical perspective,either the natural law has no content, the semantic equivalentof “all bachelors are unmarried,” or the content of the natu-ral law has no status in logic, being based almost entirely onHume’s fallacy, the derivation of “ought” from “is” (even asHume understood the limited place of this fallacy in the real


E vo l u t i o n a r y N at u r a l L aw 85

world better than many who follow). If human nature wereconstructed roughly along the lines described by Aristotle andThomas Aquinas, there would still exist no grounds to concludethat we “ought” to live according to this nature. Perhaps truenobility lies in defying our nature, as when I resist my naturaldesire to murder the drunken man who carelessly ran over mychild. In any case, nature is discovered; ought is created by thedecision to observe certain values. Between these two realmsthere is a chasm, one that neither a belief in God, nor in a worldproperly ordered by nature, can bridge, as we live in a secularand modern world.

In response to this criticism, the new natural law was born.People still talk and act as if goods such as life, friendship,health, knowledge, beauty, and play are good in themselves.(These are, of course, similar to the goods chosen by Thomas.)For example, we desire money in order to acquire things.Money is an instrumental good, but health is a good in itself.Goods in themselves do not require further justification, andbecause they are already values, one is not committing thenaturalistic fallacy in saying we ought to pursue them. Fur-thermore, because these goods are not themselves moral values,but pre-moral, or so Finnis and George argue, the freedom ofthe individual is preserved. Not enmeshed and obligated moralbeings, but free agents who would naturally (selfishly) choosethese goods for themselves, are the subjects of the new naturallaw (George 1999, 45).

The approach of Finnis and George to the natural law isempirical. It takes what is said to be desirable as truly desir-able. What’s the human good? Just ask people. Turns out theygenerally agree on the same basic set of goods. The troublewith this approach is that not only is there no hierarchy amonggoods, but no developmental ideal remains. Abandoned is theprinciple that some goods are more important and profoundthan others. No longer part of a big story, the new natu-ral law seems ideally suited for a contemporary world that nolonger believes in metanarratives, as they are sometimes called:big stories about right and wrong, good and bad ways to live



(Lyotard 1984). The Bible is an exemplary metanarrative, asare the works of Plato and Aristotle. So too are the works ofThomas and Jacques Maritain.

In the absence of a “speculative philosophy of nature” bywhich to order the hierarchy among goods, Germain Grisez(1965) and Finnis (1980) posit what they call “modes ofresponsibility,” to guide us in choosing among them. Other-wise, I might choose to continue chatting with friends insteadof preventing a child playing nearby from running into traffic.(If basic goods are equally valuable, who is to say that a child’slife is more important than pursuing the pleasures of friend-ship?) In developing “modes of responsibility,” the new naturallaw theorists believe they have met the objection that they canneither find nor posit a hierarchy among goods.

Modes of responsibility are, in fact, familiar moral guidelines,even if they do not always look so familiar when expressed inacademic-speak, such as “choose and otherwise will those andonly those possibilities whose willing is compatible with a willtoward integral human fulfillment” (George 1999, 51). A morefamiliar way of expressing the leading principle is in terms ofKantian universalism. “A person,” wrote Immanuel Kant, “issubject to no other laws than those which he (either alone orjointly with others) gives to himself” (Kant 1991, 50). SinceI would want someone else to break off a conversation withfriends to save my child, then I must will that moral hierarchyfor myself as well as others. One can readily see why severalcritics of the new natural law see it as Kantianism in disguise.Indeed, as Henry Veatch (1978, 24–25) has argued, that seemsto have been the fate of the natural law for many years now.

Another way of putting this same point is that ever sinceKant, scholars have been practicing “as if” natural law. Likethe Kantian categorical imperative (act as if your action wereto become a universal law that all people, including yourself,must obey), moral principles are issued as if they were princi-ples of the natural law, but upon closer inspection, one quicklyrealizes that nature itself is treated as valueless—external to rea-son, and hence of no moral consequence. This seems to be theposition of the new natural law theorists. The devaluation or



epistemological disappearance of nature arises, one suspects, notmerely from an overscrupulous observance of the is/ought dis-tinction, but from a way of thinking that remains committed tointerpreting human progress in terms of humanity’s liberationfrom nature. Ironic is how a position so essential to the Enlight-enment has become essential to postmodernism as well, whichargues that there is no path from text to world. We are trappedin text, from which there is no exit (Devine 2000, 55; Kainz2004, 41–42, 73).

Evolutionary Natural Law

If the new natural law would solve the is/ought problemby lifting natural law out of nature, evolutionary natural lawwould proceed in the opposite direction, re-naturing naturallaw. Though in the end it does not avoid Hume’s problem,evolutionary natural law allows us to rethink the is/ought prob-lem much along the lines Hume himself began, that of moralsensibility. Frans de Waal (1996) argues,

Our ancestors began to understand how to preserve peace and order—hence how to keep their group united against external threats—without sacrificing legitimate individual interests. They came to judgebehavior that systematically undermined the social fabric as “wrong”and behavior that made a community worthwhile to live in as“right.” (208)

De Waal has a list of these community-supporting traits, includ-ing “sympathy related traits,” “norm related characteristics,”“reciprocity,” and “getting along” (211). Most are readilytranslated into the human goods listed by Aquinas. For exam-ple, sympathy includes not just pity, but the traits of attachmentthat lead parents to care for their children, and the communityto see to their education. Getting along is defined in terms of“community concern and maintenance of good relationships,”a phrase that could have almost been lifted from Thomas, wereit not expressed in the argot of social science.



Yet, de Waal does something Thomas would never do. Heputs the terms “wrong” and “right” in quotes. This is not justcontemporary social science talking. De Waal understands thatupholding the social fabric is not necessarily good. It dependsupon the quality of the social fabric itself. Is the society equiva-lent to a bunch of German robbers? Does it live off the labor ofan underclass of Helots, serfs, or slaves? Is it imperialistic, war-mongering? Not only can evolutionary natural law not answerquestions of “right” and “wrong” at this level, but it gains itsstrength from assumptions that make it almost impossible toaddress these questions.

The group must remain united and stable, as de Waal sug-gests, for if it is not, it will be less effective against externalthreats. Evolutionary morality assumes, at least tacitly, and oftenexplicitly, that the morality of the group is the morality ofwar. In a sense, evolutionary morality is Hobbes writ large: ina threatening world, the group must be a stable and secureplace, not one in which internal conflict invites attack. JamesQ. Wilson (1993) puts it this way in The Moral Sense.

How can there be a moral sense if everywhere we find cruelty andcombat, sometimes on a monstrous scale? One rather paradoxicalanswer is that man’s attacks against his fellow man reveal his moralsense because they express his social nature. Contrary to Freud, itis not simply their innate aggressiveness that leads men to engagein battles against their rivals, and contrary to Hobbes, it is notonly to control their innate wildness that men create governments.Men are less likely to fight alone against one other person thanto fight in groups against other groups. It is the desire to earn orretain the respect and goodwill of their fellows that . . . leads men toaccept even the most distorted or implausible judgments of theirpeers . . . and persuades many of us to devalue the beliefs and claimsof outsiders. (227)

Wilson makes this claim in a section of his book asserting theexistence of “moral universals.” Yes, he argues, there are moraluniversals, such as the affection of a parent for a child, a senseof empathy and fairness, and a sense of duty and loyalty tothe group, among others. The trouble is our moral senses are



parochial, arising in and bounded by the group in which we live.No matter how large this group, say, a nation of 300 million(and it is rarely that large; usually it is much smaller, such as“Americans like me”), these universal values are not coextensivewith humankind. Furthermore, they can never be coextensivewith humankind; for they originate in a group that defines itself,particularly in its need for hierarchy, order, and cooperation,in terms of the threat posed by other groups. No threat, nocohesion. It is as if Hobbes’ mighty sovereign was the threatposed by other groups. It is the external threat that keeps thesovereign state from devolving into civil war, or even the war ofall against all. Enemies do what even leaders cannot.

From an evolutionary perspective, group morality stems fromthe need to manage group conflict. “The building blocks ofmorality are not nice or good behaviors but rather mental andsocial capacities for constructing societies ‘in which shared val-ues constrain individual behavior through a system of approvaland disapproval’ ” (Wade 2007; internal quote from de Waal).The problem is apparent. Evolutionary natural law is an expla-nation of the origins of morality. It cannot be a reason, in thesense of an answer one would give to someone as to why oneshould be moral. “Be moral because it was to your ancestors’adaptive advantage” makes no sense as an answer to someonein an ethical quandary.

Of course, one does not usually turn to natural law as ananswer to why someone should be moral, at least not as anexplanation. Exchanges such as the following usually don’thappen, though they have their place.

Tom asks, “Tell me why I shouldn’t rob and even kill if itmakes me rich and happy?”

Joe replies, “Because natural law says you shouldn’t. Not onlythat, natural law tells you that it will make you unhappy, becauseyou will violate the dignity of others, and thus betray your ownhighest and best nature.”

Instead, one turns to particular stories about particular peo-ple who have lived lives of robbery and murder, only to findemptiness in the end. The Bible used to be the place where mostpeople in the West started; today, novels are popular. The Book



of Evidence, by John Banville (2001), is just one of hundreds ofexamples one might turn to.

I hit her again and again and her blood spattered the window. Thisis the worst, the essential sin, I think, the one for which there will beno forgiveness: that I never imagined her vividly enough, that I nevermade her be there sufficiently, that I did not make her live. Yes, thatfailure of imagination is my real crime, the one that made the otherspossible. (215)

One never quite knows if this is the protagonist’s deep insightinto morality, or merely into his own narcissism—that he mustmake, rather than simply let, her live. Such is the wisdomof novels. It should not pass unnoticed that even a strictlysecular novel, such as Banville’s, whose protagonist is noStephen Dedalus, struggling against his religious upbringing,remains indebted to Judeo-Christian concepts such as sin andforgiveness.

De Waal says perhaps more than he knows when he states,“I look at religions as recent additions [to morality]. Their func-tion may have to do with . . . giving a narrative to them, which iswhat religions really do” (Wade 2007). But if giving a narrativeis what giving a reason really amounts to as far as the explana-tion of morality is concerned, then this recent addition is notmerely a gloss on our evolutionary heritage, but its transforma-tion into something different, albeit not completely different,for we never escape our nature. Rather, we subject nature toa uniquely human form of understanding, the moral narrative.Natural law is this narrative. However, because natural law isan abstract narrative, for many (but certainly not all) purposes,particular stories are more persuasive. For our purpose, whichis to think about the basis and meaning of morality, natural lawitself is the narrative we are interested in. The question is whatevolutionary natural law might add to this story.

Evolutionary Natural Law is not Natural Law

In “Evolutionary Ethics: An Idea Whose Time Has Come?”Peter Corning (2003) mentions that one of the good things to



come out of the terrorist attacks of 9/11 was the sense that fora little while Americans were all in this together, that many ofus were not just willing but eager to sacrifice for others, suchas donating blood and money. More than a few sacrificed theirlives. Trouble is, evolutionary ethics, understood as the built-in tendency of humans to cooperate, and even sacrifice, in thename of the group, explains the behavior of the terrorists as wellas their victims. Like their victims, the terrorists gave of them-selves to the group, caring more about a shared ideal than theirown lives. Corning, like most evolutionary moral theorists, doesnot discuss the power of shared ideals. Yet it is this, as muchas the more mammalian forms of attachment about which hewrites, that binds human groups together. Human attachmentis mediated by symbols, not just skin and kin.

What makes the ethics of the terrorists wrong? About thisquestion evolutionary ethics is not very helpful. Evolutionaryethics is concerned with the relationship between me and mygroup as it faces other groups in the competition for scarceresources, which for human animals includes meaning. In thecase of the terrorists, the scarce resource is the meaning ofmodernity itself. Evolutionary ethics helps to explain as a pointof empirical fact why individuals sacrifice for their group. Indoing so, it tells us about a force that no one concerned withsocial or ethical theory can ignore.

What evolutionary ethics cannot do is tell us what we shoulddo. In other words, evolutionary ethics is an empirical accountof the bonds that hold societies together. It cannot tell us whichsocieties should be held together, which shouldn’t, how, atwhat cost, and by what means. This might seem an obviouspoint, except that by the second sentence of his essay, Corn-ing is fudging the distinction, suggesting with little more thana hyphen that evolutionary ethics not only explains, but jus-tifies, human ethical systems. As he puts it, “The basic issue,in a nutshell, is whether or not human ethical systems can beexplained—and justified—in terms of evolutionary principles”(Corning 2003, 51).

An even simpler example helps to make my point. In Dar-winian Natural Right: The Biological Ethics of Human Nature,Larry Arnhart (1998, 265) argues that “the Catholic Church’s



prohibition of divorce is contrary to the natural pattern ofhuman mating.” True enough, but is this bad or good? Dar-winian natural right tells us that banning divorce will putpressure on human nature. Many will fail the test. But asAristotle’s Ethics tells us, the most valued human excellencesare precisely those that are the most difficult to achieve. Know-ing that the Church forbids a practice that is contrary to thenatural pattern of human mating tells us that the Church is ask-ing something difficult of us. But we knew this already. What wedon’t know is whether the Church should ask this, and aboutthat question evolutionary ethics is not helpful.

In fact, the situation with Arnhart is stranger than firstappears. Arnhart is the most visible spokesman for a conser-vative interpretation of evolutionary natural law. “For Arnhart,Darwin is not a biological materialist but a modern disciple ofAristotle. Properly understood, Darwinism proves that moral-ity is rooted in human biology” (Guerra 2001, 8). And yet, forall his apparent pleasure in quoting Aquinas as once describ-ing natural right as “that which nature has taught all animals,”Arnhart must abandon the tradition of the natural law in orderto make it compatible with Darwin (ST I–II, 94, 2; Arnhart1998, 259–260).

Darwin never uses the term “evolution” in The Origin ofSpecies. Evolution is a teleological term. To say that somethingevolved is to imply that it evolved toward something. “What ismost striking about the Darwinian defense of morality is that itargues for one of the positions that natural law has traditionallyargued against. Natural law historically has opposed any sim-plistic identification of the natural with the biological” (Guerra2001, 10). In the tradition of the natural law, “natural” hasalmost always meant ideally reasonable (not ideally rational),understood as viewing who we are in terms of who we couldbe. In other words, natural law tells a story about what wecould be at our best. Natural law elaborates on who we mightbecome if we fulfilled ourselves as human beings as fully as pos-sible. For all his conservatism, Arnhart has abandoned the heartand soul of the traditional natural law in order to find its pur-ported ground in nature. But he’s looking at the wrong nature.



Natural law isn’t about biological nature. The context ofAquinas’s comment on what nature has taught all animals is notthat of equating humans with animals, but quite the opposite—that of beginning with those things we share with animals, suchas a desire to live and procreate, in order to show how humanparticipation in the natural law, while rooted in our animalnature, extends far beyond it (ST I–II, 94). The nature that nat-ural law is concerned with comes closer to the nature with whichMaritain is concerned, the inclinations of the human heart. Thenature to be studied is the heart’s desire to love. The history tobe understood is why human love so often fails. A vague field ofstudy to be sure, at least compared with Arnhart’s (2000, 23)claim that if natural law is to remain intellectually vital, it “willneed to show that [its] position is compatible with this newscience of human nature.”

For a moment Arnhart sounds like Hobbes talking. Hobbestoo believed that he was not just telling a story about humannature; he was founding a new science, albeit a science basedon a mechanical rather than evolutionary model of man.

To suggest that man is a machine was a great step forward in thought.Even though the hypothesis is probably untenable, it marked thebeginning of the effort to use scientific methods and objective con-cepts in the sphere of human behavior. In the seventeenth centurythis was a novel undertaking, as well as a dangerous one.

(Richard Peters 2006, 9)

The danger that Peters refers to is the threat posed by theChurch. Hobbes and Galileo were contemporaries.2 Today, themechanical model is out, the evolutionary model of man is in,but the desire to build a science of man based on the reign-ing model of the natural sciences lives on. Though it certainlyappears as if Hobbes was committed to a scientific model ofman, we shall see that science for Hobbes was a rhetorical strat-egy in an ideological struggle, a point overlooked by both Petersand Arnhart.

Consider what Arnhart is willing to sacrifice in order to foundnatural law in a less metaphorical (more precisely put, a less



interesting and less subtle metaphor) reading of nature. Hewould abandon, or rather confuse, a 2,000-year-old traditionof the meaning of “natural” in the term natural law. Nature inthe natural law tradition doesn’t mean empirical human natureas it is. Nature means teleological human nature, human natureas it could be, human nature at its best, human nature under-stood in terms of what Aristotle called our final cause, the sakefor which a thing exists or is done. Nature in natural law refersto our most complete development as humans. This is whatThomas means, this is what Maritain means, and it is a meaningentirely compatible with evolutionary natural law, as long as wedo not become reductive and literal minded.

If Arnhart would turn an account of the evolution of moralityinto the basis of natural law, de Waal is more circumspect. A pro-fessor of primate behavior, he wonders to what degree empathyis to be found in certain primates. Easiest to find is “emotionalcontagion,” as it is called, in which one creature seeks to com-fort another, because the comforter has, in some sense, caughtthe other’s pain, and is seeking to comfort himself. Most mon-keys seem to do this. Apes, however, especially bonobo apes,take this place-taking a step further, imaginatively identifyingwith the particular situation of the injured other, what we callempathizing. De Waal tells the fascinating story of a bonobofemale empathizing with an injured bird. The story takes placein the Twycross Zoo, in England.

One day, Kuni captured a starling. Out of fear that she might molestthe stunned bird, which appeared undamaged, the keeper urged theape to let it go . . . Kuni picked up the starling with one hand andclimbed to the highest point of the highest tree where she wrappedher legs around the trunk so that she had both hands free to holdthe bird. She then carefully unfolded its wings and spread themwide open, one wing with each hand, before throwing the bird intothe air.

(de Waal 2006, 30–31)

Kuni had seen birds flying throughout her enclosure herentire life. Conversely, what she did would have killed a babybonobo. Instead, Kuni demonstrated “the empathetic capacity



so enduringly described by Adam Smith as ‘changing places infancy with the sufferer’ ” (de Waal 2006, 31).

From this and other evidence, de Waal concludes that onefinds in the bonobos and chimpanzees, the most cognitivelydeveloped of the apes, not just empathy, but the capacity for atheory of other minds (as demonstrated by attribution, the abil-ity to recognize the mental states of others,3) and place-taking,all of which are necessary for the direction of other-directedsympathy that takes the situation of the other into account, notassuming it to be a mirror of one’s own. But sympathy, evenin its most sophisticated form, while necessary to morality, isnot sufficient. De Waal (2006, 167) talks about sympathy as abuilding block, and perhaps that is the correct term, as long aswe recognize how much more remains to be built. Most impor-tant are those virtues summarized by Hume under the categorythe “party of humankind.”

With this term, employed in the conclusion of An EnquiryConcerning the Principles of Morals, Hume (1960) seems tomean that through education and culture we have the poten-tial to refine the original, limited disposition to respond to thewishes and needs of those closest to us, and so extend our sym-pathies even when they conflict with our desires, even whenthey go beyond the bounds of our group, to potentially includeall humankind.

But these principles, we must remark, are social and universal; theyform, in a manner, the party of humankind against vice or disorder,its common enemy. And as the benevolent concern for others is dif-fused, in a greater or less degree, over all men, and is the same inall, it occurs more frequently in discourse, is cherished by society andconversation, and the blame and approbation, consequent on it, arethereby roused from that lethargy into which they are probably lulled,in solitary and uncultivated nature. Other passions, though perhapsoriginally stronger, yet being selfish and private, are often overpow-ered by its force, and yield the dominion of our breast to those socialand public principles. (114)

This, though, will require that humans come to be morethan merely sympathetic in a broad sense, sympathetic even



when doing so runs against our selfish desires. The party ofhumankind seems to require that humans come to see ourselvesas others see us. This is the approach of moral sensibility, theapproach to morality that seems closest to that of evolutionarynatural law. Christine Korsgaard draws on Adam Smith’s (1982)Theory of Moral Sentiments to make this point.

Because we are social animals, sympathy leads us to consider how weourselves appear from the point of view of others, and to enter intotheir feelings about us. Through the eyes of others we become thespectators of our own conduct, dividing internally, as Smith describedit, into an actor and a spectator, and forming judgments about thepropriety of our own feelings and motives. The internal spectatortransforms our natural desire to be thought well of and praised intosomething deeper, a desire to be worthy of praise.

(Korsgaard 2006, 115)

Here is the real internalization necessary to transform sympa-thy into morality, the internalization not of rules, but of a socialjudgment of what it means to be worthy of praise. One mighttrivialize this judgment as simply the desire to be thought wellof by one’s buddies, and it might easily become that. But ifone’s friends and community belong to the party of humankind,if they share the virtues of wisdom, courage, self-discipline, jus-tice, piety, charity, hope, and humanity, then desiring to beworthy of their praise is desiring to be worthy of the highestthings.

My list of virtues is Greek and Christian. Hume lists a similarset of virtues, before going on to argue for the close connection,but not the identity, between those virtues that benefit societyand those that benefit the individual.

Are not justice, fidelity, honour, veracity, allegiance, chastity, esteemedsolely on account of their tendency to promote the good of society?Is not that tendency inseparable from humanity, benevolence, lenity,generosity, gratitude, moderation, tenderness, friendship, and all theother social virtues? Can it possibly be doubted that industry, discre-tion, frugality, secrecy, order, perseverance, forethought, judgement,and this whole class of virtues and accomplishments, of which many



pages would not contain the catalogue; can it be doubted, I say, thatthe tendency of these qualities to promote the interest and happinessof their possessor, is the sole foundation of their merit?

(Hume 1960, 116)

The desire to be praised shares some of the attributes ofMaritain’s chief virtue, love. For, while love is a virtue, it isnot an unalloyed virtue. That depends upon how one loves, andwhether the object of one’s love is truly worthy. Love, the great-est virtue, is likely to lead us into the greatest folly. So it goeswith the desire to be worthy of praise. The wish to be praisedis not necessarily good. Noble is the wish to be praised by thebest people for the truest virtues. Such nobility requires educa-tion and cultivation of the natural desire to be praised, as evensuch a natural sentiment as love requires education and cultiva-tion, what Maritain means when he says that “love can radiatewithin a life morally upright . . . . It can likewise radiate . . . withina life of sin” (Maritain 1984, 224). So too can the desire to bepraised.

Telling Stories about Our SympathiesTransforms Them into Natural Law

Human sensibility, what Thomas called inclinationes naturales,may be the foundation of the natural law, one which, at somelevel, we share with the higher apes, though the way in whichhumans share these sympathies among themselves is quite dif-ferent. Humans share the sympathies that make up the party ofhumankind by sharing stories.

Different small bands of human beings tried out various sets of nor-mative resources . . . stories, myths . . . to define the way in which “we”live. Some of these were more popular with neighbors and withdescendent groups, perhaps because they offered greater reproductivesuccess, more likely because they made for smoother societies, greaterharmony, and increased cooperation. The most successful ones weretransmitted across the generations.

(Kitcher 2006, 136–137)



Though he seems to speculate about genetic transmission whenhe refers to “reproductive success,” the time span of whichKitcher writes, beginning about 20,000 years ago, seems tooshort to allow for anything but cultural transmission.

At some point, and here I elaborate on Kitcher, these storiesbecame woven into more complex narratives, religious narra-tives, as de Waal refers to them, about the place of man andmorality in the scheme of things, the conjunction of moralitywith cosmology or theology; narratives about how men andwomen might arrange their conduct in order to fit into thenatural order of the larger world. In fact, one suspects thatreligion, cosmology, and morality were woven together fromthe beginning. It is moderns who have separated their narrativestrands, not always to our advantage.4

The advantage of viewing the natural law in this way is that“Hume’s problem” disappears almost completely (though wehave seen that it was never a real problem for Hume to beginwith). Because we are not deriving “ought” from “is,” theunbridgeable gulf between fact and value never emerges. Forhumans, the world is all value all the time. The disadvantages ofviewing the natural law in this way are several (or not), depend-ing upon what one is hoping to gain from the natural law. First,evolutionary natural law does not, and cannot, exist. Moral sen-sibility exists, but not evolutionary natural law, because naturallaw requires both the ability to be motivated by an ought, asKorsgaard puts it, and the ability to tell a story about what oneis doing, so placing one’s act within the framework of a largerstory of humanity’s proper place in the natural order of things.The story that makes sense of the “ought” is natural law, notthe mute impulse.

The second disadvantage of viewing the natural law from anarrative perspective, at least if one is hoping that the naturallaw will settle questions of right and wrong, is that the narra-tive approach reveals that there is no assumption I could makeabout the natural law that would prove, for example, that theftis always wrong, or even that murder is always wrong in everycircumstance (something, by the way, that not even JacquesMaritain [1951, 72–74] believed, as revealed in his discussion of



the terrible dilemmas faced by French Resistance.5) Or rather,there is no assumption I could make that would not dependupon assumptions that themselves are subject to question.Since I have made this argument previously, I will not repeatit here.

The best way to proceed is by way of what LudwigWittgenstein (1973, part 11) called “aspect seeing.” Approach-ing the natural law as a story helps us understand that whenwe ethically judge, praise, or blame, we are not putting aninstance under a universal. Instead, we are placing an act withinan implicit narrative context. In other words, we are putting theact within a story, such as “this act is bad because it is part ofthe story we call sexual harassment.”6

The relationship between act and story isn’t one of derivationor definition, but more akin to what Wittgenstein (1973) callsa “family resemblance.” From this perspective, moral debateand discourse become an example of persuasion. Considerthe following example: A man tells a dirty joke at work inmixed company. Is he the protagonist in the story called “sex-ual harassment,” or the story called “fooling around at workby well-meaning boors?” Moral debate and discourse on thisissue become a matter of trying to persuade people that thesalient aspects of the act (he told a dirty joke) are part of thelarger story of sexual harassment. This is why the first move,often called “thick description,” is key, for it is this move thatlocates the act within the story called sexual harassment, asin “he winked conspiratorially at his men friends as he beganhis joke.”

Or as Wittgenstein put it, there are things that cannot beproved, but can sometimes be pointed out, as in “Here’s whyI see the act as part of the story called sexual harassment.Because just before he told the so-called joke he . . . .” Once onelocates the act, in this case telling a dirty joke, as part of the storyof sexual harassment, one has done one’s ethical work. Onceone has done this, one has exercised ethical judgment: judg-ment in and through an act of rhetoric. Judgment here meansnot what Kant meant, the application of laws to cases, but anact of interpretation that describes something as something else.



Pointing out its resemblance to other acts, placing it within anarrative context, is what justifies the use of value-laden wordsto describe the act of telling a dirty joke as sexual harassment(Levine 1998, 37).

Here is the model for all philosophical justification: thehigher one goes up the ladder of moral abstraction, from sex-ual harassment, to “the telos of a good human life,” the morejustification looks like “aspect seeing.” This is because there isless and less agreement on fundamentals, less and less accord onthe principles one might subsume an instance under, even if onecould agree on the character of the instance, which is generallyhard enough in itself, as the story about the dirty joke reveals.

Because it is concerned with moral sensibility—Aquinas’sinclinationes naturales—the natural law will tell stories thatmake a direct appeal to human feeling, connaturality, moralintuition, the vibration of the human heart, whatever term youwish. But because we are human animals who use language,these feelings are always mediated through stories. The natu-ral basis—moral sensibility—is real, and can be counted upon(counted upon, alas, also to deceive us), but it speaks to us inthe only language it and we know, that of narrative. These nar-ratives can be reconstructed as rules, universals, and all the rest,but the question then becomes why? Is not the natural law, nowthat we know what it is, enough?

Stunted narratives

The new natural law of Finnis and George is a stunted story,for it lacks a developed narrative to go with it. Like so muchphilosophy, the new natural law solves the problem of the jus-tification of fundamental moral statements by simplifying oreliminating the metaphysical assumptions (assumptions aboutthe human good) behind them. Trouble is, justifying naturallaw by simplifying its narrative in this way achieves only a simplenarrative.

Evolutionary natural law is also a stunted story, but onemust make a distinction here between the work of de Waaland Arnhart, for example. De Waal’s studies of the origins of



moral sentiments in primate behavior are composed of dozensof fascinating narratives, one good story after another, onlyone of which I have shared, the anecdote of Kuni, the bonobowho climbed a tree to release a bird into the air. Together deWaal’s stories tell a compelling tale of chimpanzees and bono-bos sharing with us the emotional building blocks of morality.But de Waal isn’t doing evolutionary natural law. He is doingevolutionary morality, or the evolution of morality. Where evo-lutionary natural law becomes a stunted language is where ittakes the evolutionary approach not as a stepping stone, but asa foundation stone, to which natural law must return, and fromwhich natural law dare not venture very far. Returning to anexample from Arnhart will make my point.

Although the religious doctrine of marriage as a sacrament can supportthe natural morality of marital bonding, this religious view of marriagecan also promote an imprudent dogmatism that goes against humannature. The Catholic Church’s prohibition of divorce, for example,is contrary to the natural pattern of human mating. Once childrenhave reached a certain age, there is no natural need for the parents toremain together forever . . . . While Aquinas concedes this, he tries toargue that permanent monogamy is required by nature to ensure thechildren’s inheritance (ST, suppl., 67). But securing the inheritanceof familial property is important only in certain social and economiccircumstances . . . . In industrialized and urbanized societies, husbandsand wives have enough economic independence to pursue the naturalhuman inclination to serial monogamy, in which human beings marry,divorce, and then remarry.

(Arnhart 1998, 265)

Earlier, I argued that one cannot use the natural law to provethat divorce is wrong, so this is not my objection to Arnhart. Myobjection is that he has trivialized the natural law. Arnhart titleshis book Darwinian Natural Right (1998), but his frequentand extensive references to Aristotle and Aquinas, as well as hisexplicit claim that “I have assumed the reality of natural endsand natural kinds” (231), reveals that he sees himself writingwithin the tradition of natural law. In other words, my objectionis not directed against a straw man.



Against Arnhart’s argument about divorce, one might argue,for example, that a lifetime commitment between two peoplemost fully realizes the nature of love as gift of self, much alongthe lines of Maritain. Here would be the place to tell storiesabout love in the times of hardship, the despair of disloyalty, therenewal of faith, and the rebirth of hope. It could well be theplace to write about marriage as religious sacrament, but thereare sacraments that take place outside the bounds of official reli-gion. Whether or not one agrees with every possibility I havesuggested, using evolutionary morality to transform natural lawinto a rational response to changes in the economic dependenceof women and children upon men in the age of industrializationseems to miss the point (as well as quite possibly being empiri-cally mistaken). Finally, who says that serial monogamy is more“natural” than a lifetime’s commitment? Arnhart quotes HelenFisher’s (1992) work on Natural History of Monogamy, Adul-tery, and Divorce as evidence, but this is hardly what “natural”means in natural law in any case. Natural means the stories peo-ple tell about themselves at their human best, to put it as simplyas possible.

One more stunted story is worth mentioning, the foundingstory of Western liberalism, Thomas Hobbes, and social con-tract theory. To some it may seem strange to call Hobbes thefirst liberal, for he favors an authoritarian state. He does so,however, for strictly “liberal” reasons: to protect the rights ofthe individual to be free from fear, to be free to trade and pursuecommerce, to be free to live his or her private life. Furthermore,his subjects all come together and individually freely contractwith the sovereign, giving up rights that are useless in a state ofnature in order to gain others. Hobbes is the first contemporarysocial contract theorist, with the social contract serving individ-ual, not social, goods, even as they turn out to be inseparable.In this sense he is a liberal (Berns 1972).

Here, I refer not to Hobbes’ particular view of humans asscared and aggressive creatures needing a mighty sovereign tokeep them in check, lest they render each other’s lives “solitary,poor, nasty, brutish, and short” (Leviathan, c. xiii). I refer moregenerally to his idea of solitary individuals coming together to



make a social contract so that out of chaos and disorder theymight have order. De Waal quotes Mary Midgley, who statesthat the point is not simply that the social contract wasn’ttrue, that there never was such a founding moment: “Muchmore deeply, there was never the need to which that contractwould have been an answer” (Midgley 1994, 119; de Waal1996, 163).

In fact, there was such a need, but it was an ideological need,not the immediate practical need Hobbes would seem to havehis readers imagine. The ideological need was to convince therestive and newly literate middle classes that they did indeedfear their own, individual violent death most of all. If so, thenthey might be governed by a central authority that adminis-tered the threat of death7 (Johnston 1986). If not, then they,like millions before them, would live and die for clan, family,tribe, religion, or party. If one stops and thinks about it fora moment, there is no more ridiculous proposition than thatmen fear their own violent death most of all. On the contrary,millions of men and women have gone, often willingly, some-times eagerly, to their own deaths in the name of their tribe,polis, nation, religion, Führer, or terrorist cell. Though de Waal(1996, 167) is evidently unaware of the history of Leviathan aspolitical rhetoric, he is properly incredulous when he asks, “Arewe so painfully aware of the ancient patterns that we crave anantidote?” The answer is yes; we crave an antidote, or rather ananodyne, from the knowledge of how terribly dependent we areupon the group.

Hobbes was never the master scientist of man. He wasthe master rhetorician, using the new, powerful language andimagery of science as geometry and mechanics to persuade fear-ful men and women to fear the same thing, so that they mightbe more easily governed. His new science of man was, in a word,a rhetorical trope, a brilliant narrative.

What about evolutionary natural law? Is it just one morerhetorical trope, using the science of the day? Yes and no, toput it as simply as possible. If a trope is characterized by irony(among other things8), then natural law is itself a trope, forwhat else is the claim that knowledge of the natural law is the



discovery of what one already knows, what is already “writtenon the heart”? The question is not whether evolutionary nat-ural law is a trope, but whether it is a bad trope: yes, whenemployed by Arnhart; no, when employed by de Waal. Evolu-tionary natural law is a bad trope in Arnhart’s case because hewould transform good natural law into bad science. De Waal,on the other hand, understands that he is not doing natural law,but something more limited, a study of the mammalian basesof the social sentiments, on which the natural law is based,but which the natural law must cultivate and refine, lest ourattachment to the group leads us to become the new Germanrobbers. Of course, de Waal doesn’t put it this way, but hisself-understanding of his project readily fits this interpretation.

If Hume’s and Smith’s insights into the origins of the moralsentiments in the opinions of others, even when elevated intothe “party of humankind,” are correct, then the natural lawcan never avoid the risk of becoming a reflection of popularmorality. This is not all bad. It is close to where Maritain endedup regarding international human rights as a type of unwrittencommon law. I suggested that Maritain’s discomfort with hisown conclusion was an inheritance of his religious approach,in which natural law is ultimately an expression of Divine Law,to which there is only one proper interpretation. Nonetheless,Maritain is right to be worried. While the common law naturallaw has much to recommend it, natural law is not something wevote on, not even by the party of humankind.

One might argue that natural law exists independently of allhuman attempts to know it. True perhaps, but unhelpful unlessone wishes to fall back on it in a dogmatic way. What helps is his-tory, as Maritain realizes. The party of humankind extends notjust across societies and cultures, but over time. Furthermore,though the sentiments of the party of humankind are universal,the ability to command them is not, as Hume (1960, 113–116)recognizes. History is where we look for accounts of the bestthe party of humankind is capable of, as well as to the depthsit has fallen. Unfortunately, history is too often about warriors,presidents, kings, and battles, too little about the noblest andbest men and women living everyday lives.



One of the tasks of those writing about natural law shouldbe to spend less time founding or justifying the natural law, andmore time documenting the lives of those who live it. As partof this study, it would be necessary to consider some of thecultural and institutional barriers to an awareness of the natu-ral law, as well as the different forms and directions that thisawareness takes. Noble and good lives come in different shapesand sizes. Determining all these things are empirical tasks, butthis does not make the natural law empirical in quite the sameway as its study. Or rather, the natural law is revealed by a con-stant dialectic (or constant comparison, if one wishes to avoidan overused word) between narratives of good human lives andthe best human lives, the best humans could possibly live. Allthe while remembering that this dialogue takes place in historyand across cultures, both of which reveal the limitations of ourknowledge. These limits should cause us to be modest aboutwhat we claim for the natural law, but they should not paralyzeus. John Locke has written about these limits, and his warn-ings about the power of history, culture, and society to dim ourvision of the natural law figure in the next chapter.


C h a p t e r 5

I n t e r n at i o n a l H u m a n R i g h t s,N at u r a l L aw, a n d L o c k e

Among those who write on international human rights, twotendencies are apparent. The first is to read virtually all the greatthinkers of human history as contributing to the developmentof human rights. Micheline Ishay (2008) is exemplary.

While human rights force us to think about universality in politicaland economic terms, they benefit from such portrayals of brotherlylove as one finds in Micah (the Hebrew Bible), Paul (the New Tes-tament), the Buddha, and others, and also, in a different way, fromthe detached universal love professed by the Stoics, like Epictetus,and advocates like Plato, Aristotle, and Cicero. While the Greek andRoman notions of laws and rights, eclipsed during the Middle Ages,would be reinvoked during the Enlightenment . . . . (19)

Understood as a strictly Western phenomenon, the Enlighten-ment continues this march of intellectual progress.

A new universal discourse of rights took hold, committed to reasonand individual free choice, to scientific planning and rules of law, tocontractual agreement and economic independence. The emerging



commercial nation state was then entrusted to diffuse these idealsworldwide in the spirit of peace and cooperation.

(Ishay 2008, 69)

Ishay’s vision is roomy, leaving plenty of space for socialism, aswell as cautious. She is hopeful but wary of the impact of glob-alization on cultural and ethnic minorities (2008, 246–311).Nevertheless, Ishay reflects a tendency among some who writeabout international human rights to write its history in thegrand style.1

A contradictory tendency is to write as if international humanrights began in the postwar era. While recognizing that “ourcurrent notion of human rights has evolved out of earliernotions of natural law and natural rights,” Thomas Pogge(2001, 187) does not think that it is intellectually or evenmorally desirable that this connection be maintained. We makeprogress in a secular world by abandoning the natural lawidiom, which is not necessarily concerned with the harm wedo to other people.

One may rather have wronged God, for example, or have disturbedthe harmonious order of the cosmos. In ruling out these (formerlyprominent) alternative ideas, the shift from natural-law to natural-rights language constitutes a secularization which facilitates the pre-sentation of a select set of moral concerns as broadly sharable in aworld that has become much larger and more heterogeneous.

(Pogge 2001, 189)

Pogge creates an unnecessary dichotomy, in which one mustchoose between an outmoded language that worships idols overhumans and a contemporary language that puts humans first.

Human rights as the culmination of history, on the one hand,and human rights as liberation from a stultifying history onthe other: both tendencies reflect the difficulty of many humanrights theorists in locating international human rights withinthe traditions of the natural law and (we shall see) natural rightsitself. First, it will help to consider three of the more interest-ing attempts, including Pogge’s, to locate international humanrights in history.


H u m a n R i g h t s, N at u r a l L aw, a n d L o c k e 109

Ignatieff: Human Rights as Politics and Idolatry

Michael Ignatieff (2001, 3) begins with a tale told byPrimo Levi, about securing a place in the chemical factory atAuschwitz, a place that meant life rather than death. Levi stoodon one side of the desk in his concentration camp uniform.Sitting at his desk, Dr. Pannwitz stared up at him.

The look was not between two men; and if I had known howcompletely to explain the nature of that look, which came as if acrossthe glass window of an aquarium between two beings who live in dif-ferent worlds, I would also have explained the essence of the greatinsanity of the third German [Reich].

(Levi 1996, 105–106)

The point of this story, says Ignatieff (2001, 2–3), is thatPannwitz is the alien, for he does not understand the mostimportant point about humanity. “Our species is one,” and eachof the individuals who compose the species is entitled to equalmoral consideration.

How far to push this simple and important point? Perhaps itdoes not require proof. It is simply a given, and we measure theperversion of men like Pannwitz, and regimes such as the ThirdReich, by how far they have fallen away from this fundamen-tal truth. Certainly we shouldn’t let questions of foundationslead us to forget that human rights documents serve first andforemost to protect rights, not to justify them. In this sense, atleast, human rights documents are fundamentally political; theyare not simply a practical instance of the natural law. In otherwords, human rights are more important than the documentsthat assert them.

Ignatieff (2001, 20) puts it more flatly when he states thathuman rights should be understood not as a language “for theproclamation and enactment of eternal verities,” but as a meansfor the adjudication of conflict. In thinking about human rightsin this way, we come to understand that “human rights is noth-ing other than politics” (21). Human rights provide the morallanguage for political argument about rights claims, and some-times to mobilize constituencies for the use of force. But one



should not confuse the use of moral language of the argument,such as “everyone has the right to life, liberty, and security ofperson,” with its status and function, which is political. Poli-tics uses moral language all the time, and we do not ask thatevery moral term be philosophically fundamentally grounded.The same is true with human rights. And, if the reader shouldreply that the political use of human rights language is gen-erally hypocritical, then the rejoinder is that hypocrisy is thetribute that vice pays to virtue. Sometimes hypocrisy is betterthan nothing.

Where Ignatieff goes wrong is to assume that because humanrights documents are political, because it is all too easy forphilosophers and academics to focus on foundations, forgettingto ask what human rights do for people, and how they do it,therefore, foundational claims can only divide people.

Foundational claims . . . divide, and these divisions cannot be resolvedin the way humans usually resolve their arguments, by means of dis-cussion and argument. Far better, I would argue, to forgo these kindsof foundational arguments altogether and seek to build support forhuman rights on the basis of what these rights actually do for humanbeings.

(2001, 54)

The logic doesn’t follow. Because it is often useful to focus onwhat human rights do, and how they do it (e.g., Ignatieff arguespersuasively that failed states are one of the biggest threats tohuman rights today), does not mean that foundational claimsdivide in ways that cannot be resolved.

In fact, there is considerable empirical evidence to the con-trary. A most convincing piece we have already seen: JacquesMaritain’s (1951, 77) claim that the founders of the UnitedNations’s Universal Declaration of Human Rights, holdingto a half-dozen different foundational or metaphysical posi-tions, were able to reach agreement by means of what Maritain(1951, 78) calls “grosso modo a sort of common residue, a sort ofunwritten common law, at the point of practical convergence ofextremely different theoretical traditions” (Maritain 1951, 78).



Mary Ann Glendon (2002) and Amy Gutmann (2001, xxii)hold to a similar view.

Interesting is to what degree this “common residue” resem-bles what John Rawls (1993) calls an “overlapping consensus”in Political Liberalism. Like Maritain, Rawls does not imaginean “overlapping consensus” to be a mere political agreement,compromise, or modus vivendi.

The idea of an overlapping consensus is easily misunderstood giventhe idea of consensus used in everyday politics . . . . We do not lookto the comprehensive doctrines that in fact exist and then draw upa political conception that strikes some kind of balance of forcesbetween them.

(Rawls 1993, 39)

Rather, an overlapping consensus is an agreement among par-ties with different fundamental belief systems because theyhave decided that their fundamental belief systems share acommon core, or “reasonable fragment of each of the maincomprehensive doctrines of the community.”2

To be sure, there is a decisive difference between Rawls andMaritain. Rawls is concerned with justified or legitimate politicalstability. Maritain is interested in truth—that each fundamen-tal view that goes into making up the Universal Declarationof the Rights of Man possesses a “reasonable fragment” ofthis truth, what Maritain calls a “common residue.” Neverthe-less, reasonable fragment and common residue are not onlystrikingly complementary images. The reality they represent,shared agreement on principles of application coexisting withdisagreement on fundamentals, is real. There are problems withthis ambition, problems more severe than might appear at firstglance. Certain familiar views, such as the Roman Catholic posi-tion on abortion, reflect a comprehensive doctrine at odds withthe laws of legitimate political institutions. Are Catholics wholive under these laws not merely compromising? Rawls (1999b,170) does not believe this is necessarily the case, pointing toCardinal Joseph Bernardin’s argument in favor of prohibitingabortion in “The Consistent Ethic” (1986), an argument based



on the values of public peace, essential protections of humanrights, and commonly accepted standards of moral behavior ina community of law. While Rawls does not enter into the detailsof Bernardin’s argument in The Law of Peoples, Rawls does notdoubt that Bernardin casts his argument in the form of pub-lic reason—that is, as part of an overlapping consensus thatincludes fundamental disagreement.

A tougher case is Sharia, the traditional interpretations ofIslamic religious law that are incompatible with the overlappingconsensus of Western liberal democracy. In the case of Sharia,the status of women’s rights and the punishment of apostasyare in question. Here, the best answer seems to be to follow thelead of Abdullahi Ahmed An-Na’im (2001), and several otherMuslim scholars, who would separate Sharia, a later set of legalelaborations from the Quran and the Sunna. Reform of Islamiclaw must be in accordance with the Quran and the Sunna (theProphet’s elaborations), or it will not be seen as legitimate. ButSharia is a historical interpretation given in the context of theMiddle Ages (Muhammad died in 632 CE), and there are otherways of reading the Quran and the Sunna that are compati-ble with international human rights, particularly the rights ofwomen and apostates.

The details I leave to the experts.3 The more general point isthat overlapping consensus is not a lowest common denomina-tor, but a more demanding standard. I shall use it in that way,abstracting from Rawls’s context, in which overlapping consen-sus serves legitimate political stability under a just constitutionaldemocracy. As used in this chapter, overlapping consensus refersto agreement on general principles of human rights, as wellas how they should be argued for and defended, even if thereremains fundamental disagreement on whence these principlesare derived, as well as portions of their content.

While performing a useful function in reminding us thathuman rights exist not to engage philosophers in endless argu-ment, Ignatieff has created a false dichotomy between humanrights as political tool kit and human rights as philosophicalfundamental foundation. There are times when an answer tothe question, “Why should the human rights of this or that



group be protected?” requires a fundamental answer, whichmeans a story that situates human beings within the universein some way—that is, a religious or philosophical story. Thereare other times when an answer to “Why?” requires no morethan the answer, “Look what they are doing to those poorwretches!”

One might put the same point another way, perhaps more toIgnatieff’s liking. If human rights are a tool kit, then they com-prise a tool kit made of words wrapped up in a parcel of rhetoric.Sometimes the rhetorical response that will be most effectivewill invoke humanity’s relationship to the universe. Sometimesthe most effective rhetorical response may be virtually wordless,an image of a starving child, for example. To call human rights arhetorical strategy is not to diminish it. The narratives of philos-ophy and religion are all rhetoric, designed to persuade. What isimportant is that the argument fit the task, and Ignatieff is cor-rect that too often the philosophical foundational argument hasbeen employed for a task for which it is ill suited: to mobilizeaction.

Thomas Pogge

Pogge’s argument against the natural law is not confined to thebrief summary of it given at the beginning of this chapter. Itis bound to his understanding of human rights as specificallyconcerned with “official” threats to the well-being of others—that is, threats posed by governments (2001, 192). The troublewith natural law, and the natural rights tradition that goes withit, according to Pogge, is that it would oblige one to defend theinterests of others against all threats to their well-being, not justthreats from the state, and state-like entities, such as organizedguerrilla groups.

Consider, for example (and this follows Pogge’s example),that someone were to steal the means of my substance, such asmy cow or my plow. Without them I will starve. For Pogge,this is not a violation of my human rights. Why? Becausehuman rights violations, “to count as such, must be in somesense official, and that human rights thus protect persons only



against violations from certain sources.” Governments and theirofficials, and “probably” organizations such as guerrilla move-ments, but not the “petty criminal” or the “violent husband,”may violate human rights (192).

In some ways this formulation has the advantage of clarity:no natural law, no natural rights, just limits to government,which stem from . . . well, Pogge has decided to leave that ques-tion aside, locating it under the category of “official disrespect”(193). And, why shouldn’t governments disrespect their citi-zens? Because governments are representative of their citizens.In some ways it is a neat solution, especially since it can indi-rectly address the threat to my life posed by the thief who stealsmy livelihood, or the spouse who beats me to a pulp.

In democracies, governments are made by us all. Therefore,citizens have a duty “to ensure that the social order they col-lectively and coercively impose upon each of themselves is oneunder which each has secure access” to the necessities of life(203). Citizens, it seems, have an obligation to vote for theminimal welfare state, including an adequate police force thatwill protect and defend its citizens. Citizens do not have anobligation to provide for each other, or to protect each otherfrom violence. “Human rights are then moral claims upon theorganization of one’s society.”

To be sure, Pogge understands that governments often failtheir citizens, and that fellow citizens, especially privileged fel-low citizens, have a special duty to foster institutional reform,meanwhile shielding the victims of injustice (202). With somany caveats, one might argue that Pogge’s institutional rein-terpretation of human rights has no practical bad effects, whilehaving the advantage of carving out a midpoint between amaximalist and minimalist interpretation of human rights.

A maximalist, or positive, interpretation of human rights saysthat human rights covers the entire panoply of rights guaran-teed by the United Nations’s Universal Declaration of HumanRights: rights not just to life, liberty, and due process, but rightsto a decent livelihood, worker protections, the right to an edu-cation, the enjoyment of the fruits of science and the arts, and soforth. A minimalist, or negative, interpretation of human rights



focuses on the protection of the basic rights of life, liberty, anddue process under law.

Pogge is able to carve out this midpoint because he allowsinstitutions to do the heavy lifting. Not international humanrights, but the institutions against which international humanrights protect us (“official” threats), go on to guarantee us alarger set of rights, if and when they are able. Or as CharlesDarwin put it, “[I]f the misery of our poor be caused notby laws of nature, but by our own institutions, great is oursin” (Gould 1991, 19). Pogge (2001, 203) quotes this famousline from Darwin, but quite unlike Darwin, he writes on theassumption that there is no sense in which the term “sin” mightmake any but the vaguest metaphorical claim upon us (Alford1993).

So what’s wrong with Pogge, except perhaps for the cavalierway in which he treats two thousand years of intellectual his-tory? And that’s mostly a matter for professional intellectualsanyway, is it not? Unfortunately, Pogge’s intellectual style is notthe problem. The problem is his position. Defending against thestate, he has ended up idealizing the state, making it, through itscitizens, the guarantor of human rights. Maritain saw the greatdanger of this in Man and the State. Ignatieff too. The UniversalDeclaration of Human Rights may be a child of the Enlighten-ment, but it was written at a time when the Enlightenment hadfallen victim to the worship of the nation-state. The purpose ofthe Universal Declaration of Human Rights was to remind peo-ple that the state is not the entity in which rights may be located,or even held by its citizens as a trust. On the contrary, the Uni-versal Declaration of Human Rights was “a studied attemptto reinvent European natural law tradition in order to safe-guard individual agency against the totalitarian state.” This fromIgnatieff (2001, 65–66), who understands the great tradition hewould disagree with.

Citizens of states are what states are composed of, and whencitizens forget that human rights belong neither to states norcitizens, but to individuals, then these human rights are inabsolute danger. Though it is the goal of international humanrights to separate rights from states (before the Second World



War, only states had rights under international law), it is worthremembering Hannah Arendt’s (1973) cautions in The Originsof Totalitarianism about the utter vulnerability of the statelessperson.

Not the loss of specific rights, but the loss of a community willing andable to guarantee any right whatsoever has been the calamity whichhas befallen ever-increasing numbers of people. Man, it turns out, canlose all the so-called Rights of Man without losing his essential qualityas a man, his human dignity. Only the loss of a polity itself expels himfrom humanity. (297)

Tying rights to states, even when these states serve, in Pogge’stheory, as trustees for citizens’ rights, is a step backward. It isa step backward because it renders the stateless utterly withoutrights, placing them in a moral purgatory. And it is a step back-ward because it leads citizens to think of themselves first of allas members of a polity, not as members of the human race.

Arendt was accurately describing the world. Hers was andremains a good argument for the establishment and preserva-tion of the State of Israel, just as Ignatieff argues that failedstates pose the greatest danger to human rights (2001, 35).But it is not an argument for locating rights within citizenswho belong to states, rather than in persons who belong tothe community of humanity. To think like this is a step towardthe idolatry of the state, even when it takes the form, as it doesin Pogge, of a genuine attempt to protect the individual fromthe state. You can’t protect the individual from the state whilethinking of the individual as first and foremost a creature of thestate, even when this creature is granted the status of citizen.Citizen is a political role, not a moral status.

Michael J. Perry

Is there any intelligible secular version of the claim that everyhuman being is sacred—or instead, is the claim inescapablyreligious and the idea of human rights ineliminably religious(Perry 1998, 5)? To this question, Perry answers no; there isno intelligible secular version of the claim that human rights are



sacred. Along the way, Perry takes on Ronald Dworkin’s con-ception of what it means to say that a human life is sacred, find-ing it deeply problematic precisely because Dworkin’s conceptis not religious.

Terms are obviously important here, and Perry uses the term“religious” in a wide sense to mean a view opposed to AlbertCamus’ experience of absurdity, in which I find myself alonein a radically unfamiliar, unresponsive, perhaps even pointlessuniverse (Perry 1998, 14; Camus 1955, 26).4 Religion says thatthe world is finally hospitable to our deepest human yearnings,that the world was in some way made with the human beingin mind (Perry 1998, 14). From this way of thinking abouthumanity’s place in the universe comes that well-known say-ing from the Talmud, “He who destroys one person has dealta blow at the entire universe, and he who sustains or savesone person has sustained the whole world” (Jerusalem Talmud,Sanhedrin 4:8 [37a]). Or as Perry (21) puts it in a clumsy turnof phrase, the “existential yield” of Christ’s teaching that weshould “love one another as I have loved you” is a world inwhich we are all part of one family, and should therefore receivethe same gift of each other’s loving care (John 13: 34–35). Butif the phrase “existential yield” is clumsy, the sentiment is not.Human rights stem from a vision in which every human life issacred because the world is hallowed ground, part of a universein which every life has a purpose and a place, no matter howobscure.

What happens when one tries to keep the “existential yield”without the religious story behind it? Some, like Glenn Tinder,hold that without religion, not just Christianity, but Christianmorality itself, becomes explicable only in Nietzsche’s terms—as a strategy by which the weak intimidate and suppress thestrong. Give up religion, and one must give up “every likeview of the universe and humanity. . . . the same thing is true ofthe idea that every individual possesses incalculable worth.” Wemust, it seems, give up virtually any and every morality, exceptNietzsche’s morality, the morality of the overman. Any othermorality is but a lie told by the weak to the strong (Tinder1989; Perry 1998, 23).



Enough has been said about the natural law to this point thatthere should be no need to argue that Tinder has gone off thedeep end. Nonetheless, the question remains: What does some-one say to a person who asks, “Why should I think of someonewho lives in Outer Mongolia as a member of the human fam-ily, my human family?” (The irony of this example is that thesewords—intended to exemplify the perspective of a parochialWesterner—might in today’s world be read by someone fromMongolia, living, working, and studying in one of several dozencountries around the world, including Mongolia.5) Religionanswers the question, “Why should I care?” Conversely, evo-lutionary biology tells us that we are not naturally made toidentify with distant others in different groups, but with ourown group. Which is not to say that identification with distant,even anonymous, others cannot be taught. Indeed, it can betaught in such a way that anonymous others no longer exist.Humans are creatures of imagination and narratives. Religion isthe greatest imaginative narrative ever told, capable of bringingan entire universe into its creation story, and so rendering theworld and its inhabitants less alien.

Religion isn’t the only means by which we make ourselvesat home, and in so doing bring distant, alien others into thehuman orbit, transforming them into people like us. RichardRorty (2001, 247) argued that “the emergence of the humanrights culture seems to owe nothing to increased moral knowl-edge, and everything to hearing sad and sentimental stories.” Asexamples he refers to Aeschylus’s Persians and Harriet BeecherStowe’s Uncle Tom’s Cabin. Of course, continues Rorty, “sen-timental education only works on people who can relax longenough to listen” (253). This requires the provision of basicphysical and economic security, even for those who would vio-late the rights of others. Then, when they ask, “Why shouldI care about a stranger, a person who is no kin to me, a personwhose habits I find disgusting?” one can answer with the onlyanswer that really works: not some answer about kinship andcustom being morally irrelevant to obligation, but somethingalong the lines of “Because this is what it is like to be in hersituation—to be far from home, among strangers,” or “Because



her mother would grieve for her” (Rorty 2001, 254–255). Inother words, the goal is not to morally prove or ground one’sobligation to another, but to emotionally cultivate it.

The great advantage of religion, from this perspective, is thatit is based upon community and ritual, which together create asacred space and a sense of the transcendent. This is very hard toget from sitting alone in one’s room reading books, the exam-ple to which Rorty recurs, in both his essay on human rights(2001) and Contingency, Irony, and Solidarity (1989). At itsbest, the Judeo-Christian religion brings to the living of dailylife a narrative of love. And, if this sounds unlikely, considerhow more unlikely it is that this love, or at least active identi-fication with the suffering of others, would come from readingnovels at home.

And yet, if Lynn Hunt (2007, 35–69) is correct in InventingHuman Rights, it is no coincidence that the greatest novels ofpsychological identification of the eighteenth century, SamuelRichardson’s Pamela (1740) and Clarissa (1747–1748), andRousseau’s Julie (1761), were published in the period thatimmediately preceded the appearance of the rights of man.What’s the connection? Widely read, these novels helpeddevelop not the capacity for empathy, which is given, but theability to deploy it so as to imagine that others unlike oneself,including servants, members of the underclass, might also haverich inner lives. With this imagination, the individual was born,and with the subjective individual came a subject of rights. And,if Hunt is a little too quick to attribute causation to correla-tion, as we say in social science, it would be equally mistakento dismiss the possibility that novels could reflect and transmitchanges in the larger culture.

If this is so, then why not simply conclude that religion andnovels that foster a sentimental education are likely to reinforceeach other, and let it go at that? Because what Perry reallywants, as it turns out, is Truth. More precisely put, he wantsto transform the experience of the sacred into a “foundationalclaim,” so as to have an answer to the “definitional” strategy.Arthur Allen Leff (1974) characterizes the definitional strategyas follows.



There is today no way of “proving” that napalming babies is badexcept by asserting it (in a louder and louder voice), or by definingit as so, early in one’s game, and then later slipping it through, in awhisper, as a conclusion.

(quoted in Perry 1998, 29)

The problem is that the experience of the sacred isn’t a foun-dation. Perry would create a sacred foundation via an act ofdefinition, arguing that Ronald Dworkin has it wrong whenhe claims that life is sacred because we feel awe at the com-plex creative process that produces the single human organism,a mysterious creative masterpiece whose destruction causes usto recoil in horror. In honoring the individual human, it is asthough we are honoring an instance of sacred art (Dworkin,1993).

What Dworkin is trying to do, of course, is to separate theexperience of the sacred from religion, as if one could argue thatthe awe Dworkin refers to is akin to a religious or spiritual atti-tude, even though it does not take place within the frameworkof organized religion. Not for Perry (1998, 28), who arguesthat sacred is an objective experience, not a matter of “sacredto you,” or “sacred to me,” but “a matter of how things reallyare.” It does not matter whether you experience human life assacred, or not. Human life really is sacred, and the only argu-ment that can back that up is the claim that sacredness stemsfrom the fact that we are all created in His name, whomeveror whatever one chooses to call The Supreme Being. Only thisguarantees that the world we live in is a meaningful place toshare with one’s fellow humans—that is, not absurd.

It doesn’t matter whether you or I believe this to be true. Orrather, it matters more than one can say, but not for the pur-poses of the current argument. What matters for the purposesof the current argument is that Perry, like Leff, is pursuing adefinitional strategy. The difference is that Perry doesn’t knowit. Calling it religious doesn’t make it any less definitional. It’sjust a definition that invokes religion, as in “I define human lifeas sacred because humans were created by a Supreme Being; asa result, we are all members of the same human family.”



If the reader is concerned about why an argument assertingreligion or God has the quality of a definition, then the answer isthat all fundamental assertions have this property. Hans Albert(1985, 18–21) has called the problem that leads to this resultthe Münchhausen Trilemma, after the fabled Baron who triedto pull himself out of the swamp by his own pigtail. The ideais that any claim to fundamental foundations must in the endbe characterized by one of three unacceptable (in terms of thesearch for meaningful, and not merely tautological foundations)choices:

1. An infinite regress, in which every challenged claim is met byanother claim which is in turn challenged. At some point, itbecomes impractical to go any further, and thus this strategycannot provide a certain foundation.

2. A logical circle, in which the stated claim is found to reston statements that have already shown themselves to requirefoundation.

3. A dogmatic breaking off of the search for fundamentalgrounds at a certain point. This strategy is feasible, proba-bly the most widely practiced, but it means an unjustifiedabandonment of the principle of sufficient reason.

Perry makes the third choice.All this isn’t to say that our choices must become arbitrary or

irrational decisions—“decisionism,” as it is called. On the con-trary, Albert (1985), following Karl Popper, stresses the way inwhich a critical attitude toward truth claims in philosophy, char-acterized by arguments that do not close the door to furtherargument, is quite possible. Socrates represents such a criticalattitude. One might also argue (and this would be my pref-erence) that about fundamental metaphysical matters, such aswhether God has ordered the universe so as to render humanlife sacred, reason alone will not see us through. Faith (fidem)must be blended with reason. Not for natural law to be possible,but for Perry’s version to make sense.

The best answer to those who are not sure that it is wrongto napalm babies is to tell stories. Rorty calls for “sad and



sentimental stories,” but in this case “graphic and horrifying”stories would be more appropriate. Images are equally impor-tant, such as the famous image from the Vietnam War of ayoung girl running naked down a dirt road, her skin burnedfrom the napalm jelly that appears to be still clinging to her.(Her name is Phan Thi. Kim Phúc, and the photo can be foundby Googling “napalm girl photo,” where one can also find atouching interview with her.) For those with a more system-atic cast of mind, cosmological stories, religious stories, storiesabout humanity’s place in the universe, may be more com-pelling. Stories about God’s love for us, about His charge thatwe love one another as He has loved us, inspire millions to carefor each other, and perhaps millions more to at least pretendthey do, which is sometimes better than nothing.6

If someone questions your religious story, you have a choice.You can elaborate upon your religious story, trying to convinceanother that your story really resonates with his or her innerexperience, his or her deepest desire to feel at home in thisworld, which is but another way of saying feeling loved. Mil-lions of converts have been made in this way. Or you can tryto tell your story in a different idiom, searching for a linguafranca. For some, this might be evolutionary biology; for stillothers, it might be the natural law of Jacques Maritain, built asit is on feelings of love and care that assume a systematic theol-ogy, but more often than not argue from the heart, the intuitiveways of knowing he called connatural knowledge. As long asone believes in the core elements of the stories one is telling,then the search for a common story would not seem to violatethe principles of Rawls’s overlapping consensus, what Maritainrefers to as “grosso modo,” the point of convergence of differ-ent theoretical traditions. It was at this point that the UniversalDeclaration of Human Rights was written and ratified.

But stories are not always enough. Napalming babiesoccurred during the Vietnam War, and for many, civil disobe-dience was the answer. Some went to prison for a night; othersfor months or years. Academics like narratives, and the religiouslike conversions. It is worth remembering that politics is some-times about laying your body on the line for what you believe.



Bodies often speak more eloquently than words. Jesus Christ is“The Word made Flesh” (John 1:14). For mere mortals, therecomes a time to choose the actions of the flesh over words,in order that our words might have meaning, rising above theusual academic drone.

John Locke, Human Rights, and the Natural Law

Substantial disagreement about the status of human rightsexists among those who write professionally on the topic—that is, those who include within their primary audience otherexperts, such as Ignatieff, Pogge, and Perry. Frequently thisdisagreement is fruitful; almost always it is thoughtful. Suchdisagreement is generally lacking among those who write thereaders and textbooks that introduce the field of interna-tional human rights to a growing body of undergraduate andgraduate students. These authors agree that John Locke’s writ-ings on natural right constitute the modern foundation ofhuman rights thinking, which culminates in the Universal Dec-laration of Human Rights and other postwar human rightsdocuments.

Trouble is, Locke’s writings on natural right are presentedin a vacuum, separated from his writings about the natural law,in which they are embedded. To put it simply, Locke wouldgrant men natural rights so that they might follow the naturallaw, a reading one would never imagine from the way in whichLocke’s natural rights are presented to the undergraduate andgraduate reader.

In The Evolution of International Human Rights, PaulLauren (2003, 15) mentions natural law and Locke in thesame breath, but refers to the rights of Locke’s SecondTreatise of Government solely in terms of “natural rights,”never once referring to or mentioning natural law again.

In Making Sense of Human Rights, James Nickel (2007, 12,92–93) treats Locke strictly as a natural rights theorist,never once mentioning the natural law background to histhought.



In The History of Human Rights, Micheline Ishay (2008,57, 88, 110, 285, 578) treats Locke strictly as a naturalrights theorist, assuming (and this is a common assump-tion) that the social contract is designed to enforce ournatural rights.

To be sure, the relationship of Locke to natural law is a com-plicated affair, a few scholars following the lead of Leo Straussin arguing that Locke was an atheist, whose mastery of esotericwriting concealed his unbelief. The result of such an interpre-tation is that Locke’s natural law is fundamentally no differentthan Hobbes’ natural law: one’s only “obligation” is to one’sown life and property. The social contract is merely a moreefficient means to fulfill this obligation.7

Many scholars, however, hold that natural law, not naturalrights, is primary for Locke: natural rights exist so that we canperform our obligations under the natural law8 (Dunn 1969;Ashcraft 1987). When Locke claimed we possess the rights oflife, liberty, and property, he was primarily making a claim aboutthe duties we have under natural law toward others: dutiesnot to kill them, enslave them, or to steal from them.9 Lockealso recognized a general duty to assist in the preservation ofhumanity, including a duty of charity to those who have noother means of subsistence. Consider Locke’s language in theFirst Treatise of Government.

Charity gives every Man a Title to so much out of another’s Plenty,as will keep him from extreme want, where he has no means to sub-sist otherwise; and a Man can no more justly make use of another’snecessity, to force him to become his Vassal, by with-holding thatrelief, God requires him to afford to the wants of his Brother, thanhe that has more strength can seize upon a weaker, master him tohis Obedience, and with a Dagger at his Throat offer him Death orSlavery.

(para. 42)

This is the language, and thinking, of the natural law.For Locke, the state of nature is designed to reveal our basic

rights and duties under the natural law (Dunn 2003, 53–54).



In other words, Locke’s state of nature is the condition ofmen and women under the natural law, before governments areestablished. Under this state of nature, the fundamental task ofmen and women is to determine the laws under which Godintended them to live—that is, to figure out the natural law.Here was the crux of the problem for Locke. He had no doubtthat humans have the ability and the duty to understand thenatural law, as well as the capacity to observe it. But from atleast the early 1680s until the end of his life, Locke was increas-ingly troubled by the question of how men could distinguishthe dictates of natural law from the prejudices of their own soci-ety (Dunn 2003, 53–54). This appreciation of the fallibility ofhuman minds in grasping the natural law, which Locke saw interms of the tendency of men to see in natural law the preju-dices of their own place and time, is the greatness of his thinkingabout the topic. For it leads Locke to set limits to what the nat-ural law may know, as well as fosters a certain modesty aboutour knowledge overall.

To be sure, there are contradictions within Locke’s owntreatment of the natural law, contradictions that reflect his mod-esty about the claims of human knowledge. To mention justone, in An Essay concerning Human Understanding, Lockedefends a theory of moral knowledge that denies the existenceof innate ideas (1975, 1.2.5–25). However, in the Second Trea-tise of Government (2.11), Locke seems to assert the existenceof innate ideas, or rather that every individual has direct accessto the natural law, “so plain was it writ in the Hearts of allMankind.”

But perhaps this confusion is our own, as though Locke mustdeny the natural law if he denies the existence of innate ideas.This need not be the case. Locke’s chief intellectual problemis not, in the end, whether men and women can know natu-ral law through an act of unaided human reason. Toward theend of his life, in The Reasonableness of Christianity (1958, 75[para. 252]), Locke seems to have come to the view that evenif men are unable to know the natural law through the use ofpure reason, God granted humans sufficient reason to knowthe basics. “God . . . gave him [man] reason, and with it a law,



that could not be otherwise than what reason should dictate.”This is standard natural law thinking, at least in the seventeenthcentury.

For Locke, the key problem remains one of how men mightdistinguish genuine natural laws from the contingencies andprejudices of the society in which they happen to live. If, asLocke (1975, 180) suggests in An Essay concerning HumanUnderstanding, when men come together they usually find“their simple ideas all generally to agree,” then it must be some-thing else that accounts for the apparent diversity of their ideas,and the prejudices that so many of these misjudgments reflect.The answer, says Locke, is that men become confused because“they perhaps confound one another with different Names.”Add to this surfeit of names the fact that men are generallyinsufficiently reflective, and the result is that they are frequentlyunaware that in fact they stand in agreement about the basics, ifthey would but listen to each other and themselves. If thought-ful men and women would come together and talk about thefundamentals of the natural law, our duties not to harm, enslave,or steal from each other, our duty to provide charity to others inneed, then out of this discussion, begun in a babble of tongues,general agreement would come to pass. If, that is, men wouldnot just talk with each other, but reflect on what they and oth-ers are saying. This may not seem to be asking a lot, but Lockeis quite aware that it is the exception.

Such an agreement would participate in what Rawls callsan overlapping consensus. It would be more than a politi-cal compromise. The participants would agree on fundamentalprinciples, even if they continued to use different names, andmore importantly, continued to live different ways of life inso-far as they concern laws, traditions, and customs not coveredby the natural law. A key element in achieving and sustainingsuch a consensus is Locke’s recognition of its limitations, basedon what Locke calls the “mediocrity” of human understanding(1975, 4.12.10). By this he means that humans should not tryto know too much by the power of reason, for unaided rea-son is a weak faculty. But if reason is a weak faculty, its real butimperfect authority may be strengthened by a knowledge of its



limits, the collaboration of others, and above all, by a willingnessto reflect honestly upon what one knows, distinguishing thisknowledge from what one wishes one knows, or could know.

It is in this vein that we should understand all the twistsand turns Locke takes to get to this point, particularly hisfailed struggle in An Essay concerning Human Understand-ing to derive natural law from first principles, much in theway mathematics is derived (1975, 3.11.16, 4.3.18–20). Henever accomplishes this derivation, and in The Reasonablenessof Christianity (1958), states simply that “ ’tis plain in fact, thathuman reason unassisted, failed men in its great and properplace in morality. It never, from unquestionable principles, byclear deductions, made out an entire body of the law of Nature”(61 [para. 241]). This has led some to conclude that Locke’sspeculations about natural law are either incoherent or a failure.One might as readily conclude that he understands the weak-ness of men’s minds, the need for Divine assistance, and the factthat even this offers no guarantee. Not the unfathomable char-acter of natural law, but the mediocrity of men’s minds, evenwhen aided by Divine intercession, should lead us to be modestin what we claim for natural law—that it binds us not to kill,enslave, or steal from others, while requiring us to exhibit char-ity to all in need. Other good things, of which there are many,are the product of civilization and progress, not dictates of thenatural law.

Relevance to International Human Rights

Such modesty about the natural law—avoiding the tendency tolocate all good things under the natural law, remains the mostdifficult temptation for many human rights theorists to resist.Consider the Universal Declaration of Human Rights, the tem-plate of so many human rights instruments. Article 24 assertsthe right to “periodic holidays with pay.” Article 27 asserts theright to be recognized as the creator of one’s intellectual prop-erty, and to be paid accordingly. Can we really say that theright to a paid holiday, or to copyright protection, is some-how on a par with the rights with which Locke is concerned?



More fundamentally, can we even claim to know that “peri-odic holidays with pay” has the status of a human right? Whatwould this mean? When one claims knowledge of the naturallaw, from which human rights are derived, that is so specific thatit allows us to know that individuals have a natural right to joina union, have access to a professional education (Article 26),enjoy the arts (Article 27), and be secure in the knowledge thatthey will be recognized and paid for the use of their intellectualproperty, one is claiming a knowledge that presumably does notexist. This is no longer an overlapping consensus, but a politi-cal compromise that devalues both the natural law and naturalrights.

Better that we see human rights as the complement of thenatural law, expressing in terms of rights the duties and obliga-tions we are bound to fulfill under the natural law. As LeszekKolakowski (1990) puts it,

[H]uman rights are the modern version of natural law theory . . . .There is no substantial difference between proclaiming the ‘right tolife’ and stating that natural law forbids killing. (214)

There is no reason we should not continue to speak in terms ofhuman rights; there is no need to recast every statement abouthuman rights into the language of the natural law. However,it is useful to remember from time to time that any sensiblediscussion of natural rights assumes its foundation in the naturallaw. Furthermore, this has consequences:

If we take the natural law seriously, and

If we take seriously Locke’s warnings about the “mediocrity” ofhuman understanding, and

If we take seriously Locke’s further warnings about the tremendouspotential of humans to confuse their traditions and customs with thenatural law,

then our natural law will be about only the most basic things,the most fundamental wrongs, the most grievous injuries.Not just, or even primarily, because it is about these that an



overlapping consensus can be achieved, but because about morethan this it is difficult for mediocre culturally, historically, andsocially situated minds to know. And of course even then thereis no guarantee.

Negative human rights

Negative human rights is another term that has been employedto capture this vision of a real but limited natural law, whosecontent roughly follows that outlined above (Cranston 2001,163–173). The term “negative” is not pejorative; it stems froman attempt to draw an analogy between negative and positivehuman rights, and Isaiah Berlin’s (1969) distinction betweennegative and positive liberty. With the term “negative liberty,”Berlin refers to the removal of impediments to my action andthe right of self-governance. With the term “positive liberty,”Berlin refers to means that might allow me to fulfill some of myhopes and dreams more fully, such as a good education, decenthealth care, and the like. Berlin concludes that while positiveliberty might indeed enhance my liberty, in the end not everygood thing falls under the concept of liberty.10

In a loosely analogous fashion, Maurice Cranston (2001,169) argues that human rights are universal. They do not andshould not depend in any way upon the situation of the per-son to whom they pertain. They are rights that pertain to anindividual merely by virtue of being a human being. Rights thatassume that an individual lives in a particular Western industrialorder cannot be universal. What sense does a right to join atrade union, or “periodic holidays with pay,” or to share in thefruits of the arts and sciences, or copyright protection, makein the subsistence agricultural economies under which abouthalf of the world’s population still lives?11 Furthermore, com-pared with the real available alternatives, many willingly chooseto practice subsistence agriculture. Subsistence agriculture is notjust a way of farming, it is a way of life (Waters 2008). The social(positive) rights that begin with about Article 20 of the Univer-sal Declaration of Human Rights are simply inapplicable in largeparts of the world.



The Universal Declaration was written with a certain typeof industrial economy at a certain stage of development inmind. Let us not call the political rights that are fitting to theseeconomies “universal human rights.” Especially now that weunderstand that human rights are an expression of natural law,and the great danger is not only that they are ignored, but thatthey are trivialized, by forgetting the mediocrity of the humanmind, as expressed (in this case) by the tendency to extrapolateideal social and economic conditions in one’s own society ontoan entire world, one that may not want them, at least in theform in which they are offered.

The comments in the last paragraph are my own, but they arecompatible with Cranston’s (2001) point about the tendency

to push all talk of human rights out of the clear realm of the morallycompelling into the twilight world of utopian aspiration. In the Uni-versal Declaration of 1948 there indeed occurs the phrase a “commonstandard of achievement” which brands the Declaration as an attemptto translate rights into ideals. And however else one might choose todefine moral rights, they are plainly not ideals or aspirations. (172)

Rights, concludes Cranston (172), are obligations. They arewhat is demanded by the basic norms of morality or justice.Though he does not mention the natural law, this is preciselyhow the natural law would conceive of human rights: as theduties we have toward others.

Still, one might argue, aspirational human rights, as they arecalled, have their place. They establish aims and ideals, and thereis no reason not to see human rights as possessing an ideal,or “ought” component, as well as an “is” demand (Weston1992, 17). Developing countries, particularly, may benefit froma moral road map. Furthermore, aspirational human rightsmake no unreasonable demands. A very poor society in themidst of a famine is not expected to provide everyone the meansof subsistence if it is physically unable to do so, though of courseone expects that it not hinder attempts at international aid forpolitical purposes. Even civil rights may be violated in a verypoor society without the society itself being held in contempt



of international human rights if the society simply lacks themeans to protect all its citizens. Manifesto rights, a frequentsynonym for aspirational rights, require us to think about whatparticular societies are capable of, lending a degree of social andnational specificity to human rights that would otherwise belacking (Pogge 2001, 202–205).

Against this argument it is hard to disagree. At the mostfundamental level, human rights exist to make human lives bet-ter, not to justify their own foundations. The only question iswhether aspirational or manifesto rights do not end up weaken-ing or trivializing the basics, which are themselves in constantdanger. The rights to life, liberty, property, and the means ofsubsistence are threatened all over the world. If one wishes toadd another right, then integrity of the person would seemthe place to start, for it is both natural law and natural rightto respect and protect the integrity of the person against rapeand other grievous infringements, offenses that seem to havebecome a part of civil war (if that is what it is, and not justrampage) in some parts of the world. To put these rights ona par with the right to join a trade union, paid holidays, anda chance to appreciate the arts somehow doesn’t just miss thepoint, it trivializes the point.

As long as the aspirational or manifesto rights with whichPogge and others are concerned remain at the level of assuringbasic human dignity, there is no problem. The problem ariseswhen Western standards of industrial life become the measureof the good life. Not only is that not possible for all, it maynot even be desirable. Certainly the natural law is not goingto be very helpful here. For that humans minds are simply toomediocre. To claim for the natural law one particular Westernway of life risks committing precisely the error Locke warnsus against, confusing our circumstances and traditions with thenatural law itself.

Previous chapters have emphasized love and pity over reason.Maritain’s inclinations seem a more powerful way of thinkingabout natural law than Thomistic reason, or rather a more pow-erful interpretation of the traditional Thomistic way of thinkingabout inclination. But about international human rights, Locke



is in some ways a breath of fresh air. It is said we suffer from“compassion fatigue.” Certainly we suffer from a surfeit ofimages of suffering. Locke reminds us that natural law is notjust about compassion and love. Natural law is about duty: ourduty not to kill, enslave, or take the possessions of others, ourduty of charity, and our duty to intervene when we see thesethings happening, as Locke talks about our duty to restrain,and even kill, a murderer in the state of nature (Second Treatiseof Government, 2.11). He is not just talking about self-defense.

Duty, love, and pity do not contradict each other. Love, pity,and intuition deserve the greater emphasis when reason seemsto be getting all the attention. Duty deserves extra emphasiswhen empathy seems to be doing all the work. Or not enough.Locke’s duty, it is important to point out, is not self-given. Thatis, Locke’s duty is not Kantian (Locke was born more than acentury before Kant). Locke’s is an older sense of duty, notassumed as part of human freedom, but taken up as a duty owedto nature and nature’s God. Or as Václav Havel states,

Only someone who submits to the authority of the universal order andof creation, who values the right to be a part of it and a participant init, can genuinely value himself and his neighbors and thus honor theirrights as well . . . . It seems that man can realize that liberty [given himby the Creator in the United States Bill of Rights] only if he does notforget the One who endowed him with it.”12

It is on this basis that the United States, a model of humanrights to the world (always a flawed model—after Abu Ghraibeven more so), was built.

Respecting otherness is negative human rights

One thinks back to Niebuhr’s criticism of Thomas’s confidencein reason, always overstated, not to say off the mark whenapplied to Maritain, who understood better than any the role oflove in the natural law. Nevertheless, Niebuhr (2008, 222–224)is not wrong to caution us that arrogance and vanity infectseverything we do, including our claims about the natural law.We become vain because we forget that we are not just creators,



but creatures. To this analysis Niebuhr adds another dimension,what can only be called a respect for the otherness that exists inthis world, and which is known best through participation incommunity.

The only humility that works, suggests Niebuhr, grows notout of a sense of justice, or duty. A belief strictly in justice andduty leads invariably to injustice, as it leads the just man orwoman to become overly confident in his or her possession ofjustice, and to an overly narrow interpretation of his or her duty(2008, 138). The only humility that works is one that growsout of the experience of belonging to a community. From thisexperience, if we are fortunate, we may learn not only that weneed one another, but also that about other ways of life, “thatother unique community is the limit beyond which our ambi-tions must not run and the boundary beyond which our lifemust not expand” (2008, 139). Listening to others, attendingto their stories, is the beginning, but only the beginning.

Niebuhr constructs his argument in response to George F.Kennan’s (1985) claim that the national interest should bethe touchstone of our foreign policy. While there is an ethicalelement to Kennan’s argument, namely that we are much morelikely to know what is good for us than what is good for others,Niebuhr (2008, 148) seems correct to label Kennan’s posi-tion as “egotism.” However, the larger framework of Niebuhr’sargument can be seen as filling in Havel’s statement about ourhaving lost touch with our status as created beings. Indeed, thisis the leitmotif of Niebuhr’s work: not just the recognition thatwe are members of a universal order, but that we are created tolive with our neighbors who have not just rights, and towardwhom we possess not just duties (though both are important),but others who possess an otherness that properly evokes aweand respect from which justice and duty flow.

Respecting this otherness reflects the negative view of humanrights at its most profound. A negative approach to humanrights is in no way minimal. On the contrary, it reflects maximalrespect for the otherness of the other individual, the other com-munity, the other way of life, recognizing that while we haveobligations to this other, our most profound obligation is to let



the other be. That is, to let the other live and flourish in his, her,or the community’s own way. Sometimes this respect requireslove, care, charity, even going to war on behalf of the other.At other times it involves simply letting the other be. Gettingthe balance right is no easy matter, but who ever said it wouldbe? This is why we need to talk about what we are doing, withourselves, and frequently with the other. About such a delicatebalancing act mute intuition will only get us started.


C h a p t e r 6

C o n c l u s i o n : E v i l a n d t h eL i m i t s o f t h e N at u r a l L aw

Two definitions of the natural law compete. The first seesnatural law as “reason reflecting upon nature.” The secondunderstands natural law as “written on the heart.” The firststresses the rational, reflective element of natural law—thatwhile natural law is based in nature, it is known through reason.Furthermore, the nature upon which reason reflects has little todo with empirical, everyday nature as it is studied by science,including anthropology. The nature with which rational naturallaw is concerned is human nature as it could be, human natureat its fully developed best. Human nature that has realized itstelos, its developmental goal.

The second definition, natural law as written on the heart,stresses the less rational, more intuitive dimension of naturallaw. Natural law is less something we know than feel, actingupon it as we act upon emotions such as pity, empathy, sym-pathy, or just knowing the right thing to do in a particularsituation, even if one cannot explain it at the time. Such knowl-edge, for that it remains, assumes a prelinguistic consciousness:there are things we can know as surely as we know anything thatwe cannot put into words, even if we can eventually find waysof talking about the ineffable.



Pain might be a good example of what it means for knowl-edge to be written on the heart. I know when I am in pain, andyet whatever words I can put to that experience will never beadequate to the experience, even if my shrieks and cries andmoans can be remarkably evocative, evoking painful feelings(but almost never bodily pain itself) in the sensitive bystander.Knowledge that torture causes terrible pain, and so shouldnever be tolerated, is an example of the type of knowledge thatis written on the heart. Worth pointing out, however, is that theheart is not isolated from history and culture. For thousands ofyears, the pain inflicted by torture was tolerated (and sometimesidealized) by various societies, and still is. Just read the openingpages of Michel Foucault’s (1995) Discipline and Punish for adescription of how men and women may take joy in the publicdismemberment of a human being, in this case Robert-FrançoisDamiens.

Damiens attempted the regicide of Louis XV in 1757. Severalrelatively recent essays and books on international human rightsrefer to a report by David Rieff in the New Yorker of a Serbianatrocity. Richard Rorty’s use of Rieff is quoted, because I wantto make a point about Rorty.

In a report from Bosnia some months ago, David Rieff said,“To the Serbs, the Muslims are no longer human . . . Muslimprisoners, lying on the ground in rows, awaiting interrogation,were driven over by a Serb guard in a small delivery van.” Thistheme of dehumanization recurs when Rieff says,

A Muslim man in Bosanski Petrovac . . . [was] forced to bite off thepenis of a fellow-Muslim . . . If you say that a man is not human, butthe man looks like you and the only way to identify this devil is to makehim drop his trousers—Muslim men are circumcised and Serb men arenot—it is probably only a short step, psychologically, to cutting off hisprick . . . . There has never been a campaign of ethnic cleansing fromwhich sexual sadism has gone missing.

(Rieff 1992; Rorty 2001, 241–242)

Rorty goes on to argue that the “moral to be drawn” fromRieff’s account of Serbian atrocities is that the men who do


C o n c l u s i o n : E v i l a n d N at u r a l L aw 137

them are not wicked or evil. They simply do not see Muslims ashumans like themselves. In this sense, they are deficient in moralimagination. Rorty makes a number of sensible suggestions, butit is here I want to pause—at Rorty’s assumption that the failureof the Serbian moral imagination is sufficient to explain atrocity.In particular, Rorty (2001, 242–244, 248) assumes that noth-ing “deep” is going on, that progress in seeing the fruitlessnessof debates between followers of Plato and Nietzsche over “Whatis our nature?” is similar to the progress that is made when onerecognizes that those who commit gross abuses of human rightsare not evil or sadistic monsters. Nor are they less rational thanthose who treat others well. Serbian and Nazi war criminalswere simply not so lucky in the circumstances of their upbring-ing. They were deprived of a sense of security and sympathy,and so of the capacity to develop a sense of empathy for others(Rorty 2001, 253).

What would lead Rorty to make such a claim, especially sinceRieff’s reference to the devil, coupled with the presence of sex-ual sadism in ethnic cleansing, suggests that there is in fact agreat deal of imagination going on, just not of a very healthytype? The fact that Rorty is committed to the view that every-thing important, at least as far as philosophy is concerned, is onthe surface. If there are psychological depths, they need not beplumbed. As Rorty (1989) puts it in Contingency, Irony, andSolidarity,

[It] is essential to my view that we have no prelinguistic consciousnessto which language needs to be adequate, no deep sense of how thingsare which it is the duty of philosophers to spell out in language.

(21)

Let’s ignore the “duty” and “adequacy” claims, for differentphilosophers have different duties, and language is adequate ornot depending upon the use to which it is put. Instead, let usconsider the central claim that Rorty seems to be making—that a complete explanation of Serbian or Nazi atrocities canbe given that argues that the offenders were unfortunate inbeing brought up in an environment in which they were not



taught to be sensitive (i.e., to develop an empathic imagi-nation) to others unlike themselves (2001, 253). They werenot taught this because it was not part of their culture’s wayof thinking, and because the conditions of life must be suffi-ciently safe so that one’s security does not depend on devaluingothers.

Why does this seem so absurd? One reason is because of thedisproportion between the terrible torments inflicted by the tor-turers and murderers, on the one hand, and the explanation onthe other. Is the Holocaust a failure of empathy? Is forcing oneman to bite off the penis of another a failure of imaginativeidentification? To be sure, the world may be absurd, and sowe should not reject an explanation that highlights this absur-dity out of hand. What Rorty’s explanation overlooks (or rather,does not allow to come into existence) is that so many of themost terrible abuses of human rights seem to involve an elementof sadism, sexual or otherwise—that is, pleasure in destructionfor its own sake, what is ordinarily called evil.

The natural law has not always paid enough attention to evil,but the tradition of the natural law understands the darkness ofthe human heart. As Thomas pointed out about the Germanrobbers, it was not merely that they failed to understand thatrobbing their neighbors was wrong, a failure that might beinterpreted as a failure in empathy. The German robbers liveda way of life that expressed and perpetuated an “evil disposi-tion of nature,” so that reason itself became wicked (ST I–II,76, 1). Their way of life redounded to corrupt reason andunderstanding itself. Similarly, Maritain understood that historyis providential only in the long run. The history that we livemay become hell, “l’univers concentrationnaire . . . a nightmareof a society,” one that has brought an undreamt-of evil into theworld. An evil that challenged ordinary morality, including thenatural law (Maritain 1951, 72).

The belief that natural law is written on the heart (a less ele-vated way of talking about “prelinguistic consciousness”) allowsthe possibility that other things are written there too, less pleas-ant things, destructive things, evil things, desires that are notimmediately accessible to language, expressed in acts of evil that



beggar the imagination. Though he was no natural law theorist,Sigmund Freud wrote late in his life about the conflict betweenlove and death (by which he meant hatred and destruction) asthe force that made the world go around.

And now, I think, the meaning of the evolution of civilization is nolonger obscure to us. It must present the struggle between Eros andDeath, between the instinct of life and the instinct of destruction, asit works itself out in the human species. This struggle is what all lifeessentially consists of, and the evolution of civilization may thereforebe simply described as the struggle for life of the human species.

(Freud 1930, 121–122)

Natural law has sometimes hesitated to grant evil a sufficientlyprominent place. The reason goes back to Saint Augustine’sview of evil as privation of the good. Evil is not an active forcein its own right; evil is the absence of good. Augustine held thisview because he believed that the world and everything in it ismade by God, and God makes only good. “Every creature ofGod is good,” says Paul to Timothy (1 Timothy 4:4), a passagecited by Aquinas to make the same point as Augustine: evil doesnot exist, except as the privation of the good (Summa ContraGentiles, book 3, part 1, c. 4).

Consider a familiar example used by countless generations ofteachers to explain Augustine’s view of evil, that of a lovely gar-ment spoiled by a rent in the fabric. The tear in the fabric isnothing substantial. On the contrary, the hole has the qualityof nothingness where something good should be. That’s whatAugustine means by evil, or so countless teachers have taughttheir students. Instead, imagine that evil is the deliberate rend-ing of the fabric, the intentional destruction of the beautiful andgood because it is beautiful and good. If so, then evil as the pri-vation of the good comes close to the death drive that Freudwrites about: pleasure in destruction.1 Aquinas came close tothis view in practice, understanding the way in which the heartcould become corrupt. Even Augustine had to struggle with hisapparent pleasure in the destruction of some pears simply outof satisfaction in their ruin.



Coming out of a religious tradition that attributes allthings to a Providential God, natural law has often unwillinglyconfronted evil. Having come face-to-face with the terribletwentieth century, Maritain wrestled with the topic in themost serious vein, understanding that against the concentra-tion camp, against genocide, men and women who hold tothe natural law are themselves drawn into “historical, socialrelativity.”2 And if the logical conclusion is total adaptation to acorrupted environment, then men and women must, it seems,trust themselves to be able to step into history without beingmerely logical. Or rather, they must trust themselves to a higherlogic that cannot be written or prescribed in advance, one thatwill whisper insistently to us when it is time to stop. For if menand women cannot act in an evil world without becoming evil,then they, and we, shall have no choice but to become evilourselves if we are not to become mere bystanders to horror.In these circumstances, the natural law serves more as dilemmathan guideline, as the good itself seems to require evil, such asthe killing of evildoers, and those who abet them. Nor is thisa dilemma to be dismissed lightly. Even when the natural lawwhispers to us that it is time to stop, will our fear and furyprevent us from listening?

These remarks are made to remind the reader that naturallaw’s emphasis on the human good must not be misinterpretedso as to make light of the active presence of human evil in his-tory. The memory of evil has little to do with natural law’sGreek heritage. For Plato’s Socrates, evil was a matter of igno-rance. One did wrong only because one failed to understandthat doing right would make one happier in the long run(Meno 77c–78b). Aristotle understood the possibility of whatthe Greeks called akrasia, or weakness of will: one could wantto do right, but still be too weak-willed to do it (N. Ethics,book 7). However, the sheer malevolence that the conceptof evil evokes was absent in the Greek understanding alto-gether, unless perhaps one turns to an unusual tragedy, suchas Euripides’ Medea.

Natural law owes its confrontation with evil to its biblicalroots. For even as Augustine and Aquinas fail to confront evil



head-on, its presence in the Judeo-Christian tradition enrichesthe narrative possibilities of natural law. “For from within, outof the heart of men, proceed evil [kakos] . . . . All these evilthings [poneros] come from within and defile the man (Mark7:21–23, King James version).” The same heart that knowsnatural law knows evil.3 Neither in Rorty’s account, nor thenew natural law, nor in evolutionary natural law, is there roomfor Milton’s Satan, for whom evil would become the good.Only the natural law tells a story about the human heart thatis sufficiently complex that it could become a place where goodand evil battle unto death—not just of the individual, but thespecies.

Consider the evil about which Saul Friedländer (1993,109–111) writes, the intoxicating ecstasy (Rausch) that seizedthe leading architects of the Holocaust as the goal of elimi-nating an entire people seemed within their grasp. Here is nomere absence of goodness. Here is no mere failure of imag-inative identification, due to a deprived upbringing. Here isan evil vein that runs deep in the human heart. Steeped inthe biblical narrative of good and evil, natural law knows themalevolence of the heart, even if the natural law too has some-times turned away from the disturbing reality of the allure ofdestruction.

Would it be fair to say that Jacques Maritain comes to holdto the position of Michael Ignatieff, who states that today “thenecessity of [the] moral law is sustained no longer by beliefin reason but by a memory of horror” Ignatieff 2001, 80)?4

Yes and no. For Maritain, the moral law was never sustained byreason alone, but by connaturality, the instincts of the humanheart. But since the terrible twentieth century, it has becomeeven clearer that the better instincts of the heart are driven notonly by what it loves, but also by what it recoils against: thesheer brutality and terror of so much of contemporary experi-ence, in intensity as well as scale. The heart is complex, and filledwith contradiction. Its goodness must be cultivated, sometimesby confrontation with evil.

Even goodness is not enough. Sometimes the natural lawseems to require acts that would themselves otherwise violate



the natural law, such as the taking of life in order to save morelives, an issue for which there is no easy answer. Internationalhuman rights provide some guidelines as to what constitutes aviolation of human life sufficient to require action on the partof others, but little guidance as to the type of action, includingthe use of deadly force. But, as Maritain suggests, perhaps thisis all we may expect of the natural law. What we may expect ofourselves is that we do not hide behind the natural law in orderto preserve our moral integrity, nor that we abandon its prin-ciples in order to act. Rather, we must take upon ourselves theburden of acting in the name of the natural law, with no clearwarrant (certainly not our own) that we are acting with properauthority.

The existential burden of choice is not lifted from us by thenatural law. On the contrary, the natural law only intensifiesthe burden. The term “existential burden of choice” meansnot only what Jean-Paul Sartre (1956, 708; 1999, 41) meant:accepting responsibility for all that I choose. The burden ofchoice also refers to accepting this responsibility in light ofLocke’s insight into the mediocrity of men’s minds when con-fronted with the claims of the natural law. Above all, that wedo not claim for the natural law more than it can bear. Weknow that the natural law forbids us from killing, enslaving,or stealing from others, while requiring us to exhibit char-ity to those in need. We believe we know that the naturallaw forbids gross assaults on the integrity of the person. Webelieve we know that the natural law entitles us to take thelaw of nature into our own hands when there is no other toenforce it.

Beyond this we are left on our own—to the wisdom of thecommunity, to our own reflection enhanced by discussion withothers. What is this reflection about? About what is written onthe heart. The locus of the natural law is private, individual,but its content must be shared. In other words, natural lawmust become subject to the dialectic (to use the term in its old-fashioned sense of dialogue) if the natural law is not to becomethe idiosyncratic preserve of individuals, rather than the sharedinsight of the community, its proper status.



Paying Attention

The first step in taking on this burden of choice—that is,responsibility for the natural law—is a willingness to look.Willful ignorance of the bad, as Thomas reminds us, is itselfa transgression of the natural law. Part of pursuing sociabilityand knowledge, one of the first requirements of the naturallaw, requires that we look around us at what’s happening toothers (ST I–II, 94, 2). A student of George Orwell captureshis moral particularism, his emphasis on looking closely at theworld, this way.

Observe closely what’s going on around you; pay attention to its par-ticulars and try to understand why they are what they are; you willoften know when something you see or have proposed to you is offen-sive to the natural order; when you know this, protest it, remove yourcooperation from it, refuse to listen to those who offer theoretical jus-tifications of it, and do what you can to prevent it from continuing.This won’t, thinks Orwell, solve all political and economic problems.Some can only be addressed at the theoretical level . . . . [But] In thekinds of cases that interest him, Orwell thinks that the clear eye can besure that what is recommended is wrong—surer than the intellect canbe of the upshot of any theoretical argument at a high level of abstrac-tion. This conviction lies at the heart of an Orwellian epistemology.

(Griffiths 2004, 38)

When one looks at the world this way, one simply knows thatkicking a coolie, procuring an abortion, abject and systematicpoverty, and the destruction of natural beauty (to use fourof Orwell’s examples) are wrong.5 One might argue that thisknowledge is not the transcendent knowledge of the naturallaw. But perhaps we need less transcendent knowledge of rightand wrong, and more practical everyday knowledge, based sim-ply on looking. Looking that is in tune with the sympathies ofthe human heart, on the one hand, and an awareness of evil onthe other. The knowledge gained represents the two sides of thesame coin that is the natural law.

The second step (for looking for evil, even with a sympatheticheart, is not enough) is sharing this awareness with others.



Writing books is one place to start, but natural law requirescommunities of others with whom to share knowledge of theevil one has found, as well as the chance to talk about and prac-tice the good life for humans. Here, it might be useful to thinkof natural law as comprising two parts. First, that part referredto by Locke when he refers to our duties not to kill, enslave,or steal from others, as well as a duty of charity. There remains,however, that other dimension of natural law that concerns ourexcellence as humans, a dimension that will include duty, butinvolves so much more.

Here, narrative comes into its own, the stories we tell eachother of good human lives well lived, the dialectic of narrativeand inclinationes naturales, compared and contrasted in books,in communities, in lives. In doing this dialectical work, weconstruct a narrative source of meaning against all the mean-inglessness in our lives, and in the world. Meaninglessness thatleads not only to despair, but to acts of evil desperation, as menand women seek to impose a human order on an empty world,an act that almost always ends in wickedness and corruption.

One should neither under- nor overestimate this source ofevil. The urge to destroy is not simply an existential revoltagainst meaningless. The urge to destroy reflects a primitivepleasure, what Friedländer calls Rausch, all its own. But the urgeto destroy does not exist in an economic, social, and politicalvacuum. If it did, then history would be nothing but the historyof destruction, and it is not. The urge to destroy seems to flowermost freely in those places and eras in which men and womenare wrenched from their history and traditions, and thrust intothe mob. Certainly this was Maritain’s (1929) insight in ThreeReformers: Luther, Descartes, Rousseau. It is the insight of thepersonalism of Maritain and Mounier. It is equally HannahArendt’s (1973) insight in The Origins of Totalitarianism, inwhich she writes that

loneliness, the common ground for terror, the essence of totalitariangovernment, and . . . the preparation of its executioners and victims, isclosely connected with uprootedness and superfluousness which havebeen the curse of modern masses since the beginning of the industrial



revolution and have become acute with the rise of imperialism at theend of the last century and the break-down of political institutions andsocial traditions in our own time.

(475)

For Arendt, there is a direct line between the concentrationcamp and mass society. One need not go that far to see herpoint.

Though Edmund Burke wrote before the rise of moderntotalitarianism, he shares with Arendt the insight that theuprooted and superfluous masses may themselves become thegreatest enemy of freedom.6 This is the theme of Reflectionson the Revolution in France (1955). Where Burke differs fromArendt is in having no vision of how the radicalization ofdemocracy might itself change this. Arendt (2000a) writesof this vision in “The Revolutionary Tradition and its LostTreasure,” referring to the system of democratic councils andwards established in the immediate aftermath of the French andAmerican revolutions, and regrettably short lived. On the otherhand, who could deny that Burke’s concerns were unwarranted?Not even Arendt.

Burke was not a man who failed to look around him. Onthe contrary, he looked around and saw the abuse of the Irishand East Indian in the face of the will to power barely disguisedas law. What he only rarely seemed capable of doing is whatArendt refers to as allowing “one’s imagination to go visiting.”As Arendt (1977) says,

The more people’s standpoints I have present in my mind while I ampondering a given issue, and the better I can imagine how I would feeland think if I were in their place, the stronger will be my capacity forrepresentative thinking and the more valid my final conclusions, myopinion.

(241)

About such an attitude one must be careful. The natural law isnot arrived at by “representative thinking,” not even when allthe representatives are gathered in one’s own mind. Her greatexample of one who allowed his imagination to go visiting is



Socrates, a man not known for his love of democracy, represen-tative government, or the opinion of the average man, exceptas foil for his own.7 Allowing one’s imagination to go visitingrefers primarily to the ability to participate in imaginary dia-logues with others, speaking with oneself as if one were theother person, in order to enrich the dialogue one might havewith oneself. Arendt (2000b) thought Socrates did this, andit is what made him a moral man.8 Participating in such dia-logues requires what is usually called empathy, and it may becultivated in a variety of ways, from reading novels to talkingwith strangers, to putting oneself in new and unusual (marginal)situations. Participating in such dialogues is one of the mostimportant ways humans have of paying attention to others.

Why would such dialogues foster the natural law, and notcultural relativism, a new Tower of Babel, mutual hostility, orsimply mutual incomprehension? For the same reason that thephilosophers’ advisory committee to the UNESCO Committeedrafting the Universal Declaration of Human Rights did notbreak down into incoherence, but found what Maritain calleda “grosso modo a sort of common residue, a sort of unwrittencommon law.” For the same reason that John Locke concludedthat people confuse themselves, exaggerating their differences,because they use different words for the same things. In trust-ing in such dialogues, one is trusting that inclinationes naturalesexist, and that they are roughly the same for all men andwomen, even as they often find different cultural and histori-cal expression. This assumes, of course, that the participants insuch dialogues are free to participate: unconstrained by force,fraud, or false-consciousness, a concept that still has its place.Until that time, it is well to remember that sometimes—notalways, but sometimes—one listens to the natural law best bynot listening to others. Determining when this might be is oneof the hardest things in the world.

Natural law does not exist to settle arguments

Natural law does not exist to settle arguments about thebest way of life. Locke was right. History and circumstance,



traditions and customs, are so overwhelming in their influenceon the human mind that it is best not to claim the imprimatur ofthe natural law when we are not speaking from the perspectiveof the common law natural law. Only when we speak from theperspective of the common law natural law, Maritain’s “com-mon residue,” may we have some confidence that the cultureand history that Locke saw as such obstacles to the natural lawhave been not so much suspended as taken fully into account.That is, that we are not just hearing part of the story.

What about slavery or segregation, thoughtful people mayreply? Most people whose voices were thought fit to be heardbelieved both were just fine at certain times and places, and yetwe know that these practices always violated the natural law.Indeed, that’s the point of the natural law—that it does notdepend on voting, or even consensus. This is what gives naturallaw its power—that it is not a creation of the day, or a time, ora place, a people, or even a consensus of peoples.

True enough, and certainly all this makes it tempting to turnto the natural law when, in the midst of the turmoil of theday, one wants to find a ground outside of time, culture, andcircumstance on which to rest one’s argument. Trouble is, natu-ral law does not exist to settle arguments. The more contentiousan argument, the more it divides the public, the more skepticalwe should be of those who argue on the basis of natural law. Weshould be skeptical about their knowledge claims, for who canknow the natural law for certain in all but the clearest cases? Weshould be even more skeptical about their understanding of theproper place of natural law in the human world.

Was it not a valid strategy to invoke natural law against seg-regation, as Martin Luther King Jr. did in his “Letter fromBirmingham Jail”? Yes, but notice what King was doing: mobi-lizing supporters using the language of the natural law as partof the language of political persuasion. As Ignatieff (2001, 20)points out, the language of human rights—and this appliesequally to the language of natural law—is properly used aspart of the moral language of political argument, as well asto mobilize political constituencies. However, those who do soshould be wary, at least when in the midst of political conflict,



of believing that a means of political mobilization can, whenseen from a slightly different perspective, be simultaneouslytransformed into a natural law.

Let there be no doubt that slavery and segregation violatedthe natural law, then as much as now. One may, however, doubtwhether those who fought slavery and segregation using natu-ral law as a rallying cry were in the best position to know thenatural law. Not because knowledge of the natural law requiresquiet reflection—perhaps natural law is sometimes best knownfrom the victim’s end of a truncheon or fire hose—but becausea deep and reflective knowledge of the natural law takes time,community, and dialogue, which must include those of differingfaiths, beliefs, and persuasions. In other words, natural law (likeinternational human rights) serves several functions, only oneof which is that of providing a foundation for our beliefs. Oneshould not confuse these functions. Like international humanrights, it may well be that the founding function of natural lawis less important than its political and mobilizing function. Ifthis is so, one must be particularly careful not to claim for thenatural law more than its due, lest we cheapen natural law’s dis-cursive, dialectical function in the name of righteous politicalstruggle.

There is room enough for both functions. It is no trans-gression to argue that the natural law supports my claim thata certain way of life most abundantly fulfills human nature. Oneshould simply understand that one is using the natural law inits political and mobilizing function, which is not the same asits discursive, dialectical function, the function that lies behindthe common law natural law. There is room for both, they mayeven enrich each other, but the two functions should not beconfused, for they are not the same.

February 17, 2010 16:19 MAC-US/ALFI Page-149 9780230622791_08_not01

N ot e s

Chapter 1

1. The process of drawing out implicit but unformulatedknowledge by the method of dialectic, or question and answer.Maieutic is from the Greek, meaning to act as a midwife.

2. The Endlösung, the so-called Final Solution (the mass mur-der of six million Jews), was never written into law. However,the steps that led to the mass murder were written down atthe Wannsee Conference, which was held in Berlin on January20, 1942. The records of this meeting were found intact bythe Allies at the end of the war and served as evidence duringthe Nuremberg Trials. Other written evidence was also avail-able to the Allies, including Reichsführer Heinrich Himmler’sspeech to a secret meeting of SS officers in Poznan, Poland, onOctober 4, 1943, in which he openly referred to the ongoingextermination of the Jews. Needless to say, there is no dearthof physical evidence.

3. www.stanford.edu/group/King/popular_requests/frequent-docs/birmingham.pdf.

4. This is a little too simple, of course. Glaucon and Adeimantusare elder brothers of Plato and are eventually convinced byhim. Thrasymachus of Chalcedon is a sophist, one who speaksnot so much the brutal truth, as one who will make the weakercase the stronger. In the Republic, however, he is renderedas one who believes in a particularly harsh version of “mightmakes right.”

5. A confession: I’ve been telling this story for so long now, thatwhile I remember the tone of my conversation with the stu-dent, I don’t remember whether the avalanche image was fromthe student or from something I had read that fit his pointperfectly.

6. Edmund Burke, “Tract on the Popery Laws,” quoted inEdmund Burke and the Natural Law, by Peter J. Stanlis


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(2003, 44). I have found Stanlis helpful on Burke as a naturallaw theorist. V. Bradley Lewis’s introduction to Stanlis (2003)is useful in setting a wider context.

7. Burke, in Stanlis (2003, 49). Burke argued that Americancolonists be treated with all the rights of Englishmen; hecertainly did not favor the American Revolution.

8. Burke, “Speech on Fox’s East India Bill,” 1783, in Burke(1990).

9. Ibid.

Chapter 2

1. This version of the story is drawn from G. K. Chesterton(1956, 43–45), with the exception of the girdle of fire, whichcomes from other sources. Thomas’s dream is the most mythicelement, and while not necessarily untrue, different versionsabound. Especially because we do not know where fact stopsand myth begins, the temptation to psychoanalyze should beresisted.

2. I draw from Josef Pieper’s Guide to Thomas Aquinas (1991,45–47) on this point.

3. The correspondence of mind and reality.4. Dennehy is referring only indirectly to Thomas, and directly

to Jacques Maritain, which only makes Dennehy’s commentmore puzzling.

5. This is admittedly an old-fashioned view, in which a law ofnature exists in the world much as physical phenomena do.Paul Feyerabend’s Against Method (1993) did much to dis-abuse the scientifically naive of that notion, but it was a viewthat did not need much disabusing among philosophers ofscience in the first place.

6. The Greek term used by Aristotle for cause is aition (Meta-physics 1013a), a term with a much wider range of meaningthan our term “cause.” The English term “make” has beensuggested as a term with a similarly wide range of meaning.

7. Thomas’s use of final cause as a proof of God’s existence (STIa, 2, 3) is a quite different (though related) use of the concept.

8. Lecture by S. M. Cohen, at faculty.washington.edu/smcohen/320/4causes.htm.

9. Eternal Law is not the same as Divine Law. Eternal Law isnot revealed by church or scripture, as is the Divine Law.


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Eternal Law stands behind Divine Law; it is what DivineLaw would interpret for us, not always and automaticallycorrectly.

10. This section on Aquinas’s reasoning draws on GregoryDoolan’s “Maritain, St. Thomas Aquinas, and the First Princi-ples of Natural Law” (2001).

11. The most well-known representative of the “modern” view isImmanuel Kant (1724–1804), who stated,

[T]hus far it has been assumed that all our cognition must conformto objects. On that presupposition, however, all our attempts toestablish something about them . . . have come to nothing. Let us,therefore, try to find out by experiment whether we shall not makebetter progress in the problems of metaphysics if we assume thatobjects must conform to our cognition.

(Kant 1996, 21; B, xviii)

12. The “original position” refers to John Rawls’s Theory of Justice(1999a), but I use it here to signify almost any state of nature,a common fiction in political theory that assumes that societybegins when individuals come together to form a communityor regime. On the contrary, individuals are always already ina community, as Thomas understands. More on this claim inchapter 4 on evolutionary natural law.

13. One can at least imagine a world in which parts add up to morethan their sum; if so, then the world must be a certain way forthe axiom to be true. If the reader replies that “the whole isequal to the sum of its parts” is a tautology, I reply that it isnot difficult to imagine a cartoon with parts overwhelming thewhole that is supposed to contain them. Since the world is notthat cartoon, I conclude that the world must be a certain wayto support our tautologies.

14. My interpretation of Thomas on connaturality draws onTaki Suto’s “Virtue and Knowledge: Connatural KnowledgeAccording to Thomas Aquinas.” These examples are fromSuto. (2004, 64)

15. Alasdair MacIntyre suggests in After Virtue (1981) that theheroic ethic is one of several plausible alternatives to that laiddown by traditional natural law.

16. Reflecting a strikingly new ethic, and way of thinking, laid outby MacIntyre in Dependent Rational Animals (1999).

17. See Alford, Psychology and the Natural Law of Reparation(2006), 105–109, for a discussion of pity at Athens.


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18. For details see Wikipedia, “The Greatest American” <http://en.wikipedia.org/wiki/The_Greatest_American>.

Chapter 3

1. I was helped by a website on Jacques and Raïssa Maritain, nowevidently no longer online (or at least I can no longer find it),posted by James Arraj. It seems unlikely that either Raïssa orJacques ever seriously considered suicide. In any case, this isRaïssa’s account, not Jacques’s.

2. Hawthorne’s prose poetry is from his “The Old Manse.”3. Since Maritain’s Notebooks (1984) is out of print, the

reader will have an easier time finding this material onlineat the Jacques Maritain Center at the University ofNotre Dame, http://maritain.nd.edu/jmc/etext/nb07.htm.Maritain is remarkably self-revealing in his notebooks, at leastby academic standards. Helpful to me was James Schall’s dis-cussion of Maritain on love and friendship in his JacquesMaritain: The Philosopher in Society (1998, 151–157).

4. John Dunaway’s (2002, 316) translation of Maritain’s “LeCantique des cantiques: une libre version pour l’usage privé.”

5. Because we never know what the other wants and needs, wemust give him or her everything, and to all the others too.This, I take it, is Levinas’s message. See Alford, Levinas, theFrankfurt School, and Psychoanalysis (2002).

6. In Freud’s late work, such as Civilization and its Discontents(1930), Eros is not just the sex drive, but the drive of life in allits forms. Against it Freud sets the Todestrieb, the death drive.It is between these two great forces that civilization struggles.“And now, I think, the meaning of the evolution of civiliza-tion is no longer obscure to us. It must present the strugglebetween Eros and Death, between the instinct of life and theinstinct of destruction, as it works itself out in the humanspecies” (Freud 1930, 122–123).

7. Richard Crane’s “Maritain’s True Humanism” (2005) is help-ful on Maritain’s view of history.

8. Amato (1975, 125–147, passim) is helpful on Maritain’spersonalism, and I draw on his book.

9. Ibid. While Three Reformers, originally published in 1925,must be considered antidemocratic, Maritain was to question


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his position on democracy within the year. The impetus wasnot only the horror of the First World War, but Pope PiusXI’s condemnation of Action Française, a right-wing groupwith which Maritain was sympathetic at the time. In any case,Maritain followed a long and crooked path to his acceptanceof pluralist democracy.

10. Ecstasy, transport, and rapture are some of the standard trans-lations of this German term. The connotation in the currentcontext is the thrill of destruction and transgression of a sacredboundary, not just taking a life, but eliminating a people.

11. Eventually Augustine concluded he destroyed the pears forother reasons, in order to belong to the group of pear thieves.I’m not sure he even convinced himself (Confessions II.viii.16).

12. For Kant, radical evil is a defect (malum defectus) not of rea-son but of will, which transforms morality into the servant ofdesire, so that we can do what we want with a good conscience.The similarity to Augustine’s concept of evil as the absolutiza-tion of my will is striking. Like Augustine, Kant excludes inadvance the possibility that someone would want to destroythe good because it is good, for that would assume “a thor-oughly evil will . . . and thus the subject would be a devilishbeing. Neither of these designations is applicable to man”(Kant 1960, 30–32). Evidently, some possibilities are just toohorrible to consider. Which does not, unfortunately, make itimpossible that these possibilities exist.

13. Lt. Calley, the only one of over a dozen killers at My Lai to bepunished, received three and a half years’ house arrest.

14. Commissions have been established in Argentina, Canada,Chile, El Salvador, Ghana, Guatemala, Liberia, Morocco,Panama, Peru, South Africa, South Korea, and East Timor.This list is not exhaustive, and the states included dependpartly on how one defines a truth and reconciliationcommission.

15. Maritain (1951, 66–67) quoting Alinsky quoting Tocqueville.16. The term is from the title of a book by David Rousset, a

political prisoner held in several Nazi concentration camps.17. I am elaborating on a dilemma suggested by Maritain.18. Kraynak (1998) is helpful here.19. Grosso modo is Italian for in a rough way, or approximately.20. Courses in Western civilization generally teach the Judeo-

Christian tradition as central to the history of the West.


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Chapter 4

1. Hume discusses the problem in book III, part I, section I ofhis A Treatise of Human Nature. [Quote changed into modernEnglish using the e-books edition, ebooks.adelaide.edu.au/h/hume/david/h92t/B3.1.1.html]

In every system of morality, which I have hitherto met with, I havealways remarked, that the author proceeds for some time in theordinary way of reasoning, and establishes the being of a God,or makes observations concerning human affairs; when of a sud-den I am surprised to find, that instead of the usual copulationsof propositions, is, and is not, I meet with no proposition thatis not connected with an ought, or an ought not. This change isimperceptible; but is, however, of the last consequence. For as thisought, or ought not, expresses some new relation or affirmation,it is necessary that it should be observed and explained; and atthe same time that a reason should be given, for what seems alto-gether inconceivable, how this new relation can be a deductionfrom others, which are entirely different from it.

Hume’s problem has been given the dramatic name of“Hume’s Guillotine,” by Max Black (1964).

2. Hobbes met Galileo in 1634, when the former was 46 and thelatter 70.

3. Long held to be distinctly human, attribution is readily foundin the higher apes. For example, if chimpanzee X doesn’t knowwhere some hidden food is, but if he knows that chimp Y does,then X will follow Y in order to find out. Conversely, chimp Ywill look in all sorts of places the food isn’t, in order to throwchimp X off that track. That’s what it means to say that aboutsome things, at least, chimps have a theory of mind (de Waal2006 69–75). A theory of mind seems essential to the moralact of taking the perspective of the other.

4. In The Elementary Forms of Religious Life, Émile Durkheim(1995) argued that both religion and morality stem from thehuman tendency to project our needs upon the cosmos, bywhich Durkheim means the human world rendered sacred anddivine. His book was based on his study of Australian Aborig-ines, whom he believed were the oldest living human groupon earth, one whose religious nature revealed “an essentialand permanent aspect of humanity” (xxxii). For Durkheim,it was the social world, experienced as the source of life and


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transcendent meaning (even as most of society’s members areunaware of this fact), that was the true source of religious feel-ing. Such a view is compatible with natural law, which remainsrooted in human relationships.

5. One should take no comfort in semantic distinctions, such asbetween killing and murder.

6. My discussion of narrative as philosophical explanation isindebted here, and in chapter 2, to Peter Levine and his workLiving without Philosophy (1998).

7. One is tempted to say that Hobbes wrote Leviathan in defenseof the royalists exiled in Paris, where Hobbes was also residingin exile. However, the book’s apparent atheism so infuriatedsome royalists that Hobbes sought protection from the revo-lutionary government in England, which was none too pleasedwith Leviathan either, but again for reasons having more todo with religion than politics. Eventually, Hobbes was allowedto return to England by the parliamentary party. In the end,Leviathan was too abstract and theoretical to provide muchcomfort to either party.

8. A trope is a rhetorical figure of speech, a way of turning (theliteral Greek meaning of the term) a word from its originalmeaning to a new meaning. Irony, metaphor, allegory, synec-doche, and many puns are all types of tropes. A trope, then, isnot just the turning of a single word. In the case of an allegory,the trope is a metaphor sustained over the length of a story.

Chapter 5

1. It is not impossible to write “little histories” of human rights.Lynn Hunt’s Inventing Human Rights: A History (2007)focuses on the impact of the epistolary novel during parts ofeighteenth-century Europe, and the way in which these novelsfostered an imagination for the feeling of others, an imagina-tion that made it plausible to claim that “We hold these truthsto be self-evident.”

2. Fred D’Agostino, “Original Position,” in Stanford Encyclope-dia of Philosophy, http://plato.stanford.edu/entries/original-position/.

3. Sharia was not developed until the second and third centuriesof Islam, and did not become a comprehensive legal and ethical


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system until well into the third century of Islam, the eight andninth centuries CE (An-Na’im 1990, 315–334).

4. Anyone familiar with the last lines of Camus’ The Stranger(1988), in which Meursault says, “I opened myself to thegentle indifference of the world,” knows that Camus’ attitudetoward the absurdity of the world does not come down to afew lines from The Myth of Sisyphus.

5. “Outer Mongolia” has not existed since the early part of thetwentieth century. Sometimes the name “Outer Mongolia”is still used to refer to Mongolia, an autonomous state,as opposed to so-called Inner Mongolia, a province of thePeople’s Republic of China.

6. I have decided not to enter into the question of just war theory,which is an aspect of natural law, but is not an aspect of naturallaw that finds much resonance in recent writing on interna-tional human rights. Just war theory would not prohibit thenapalming of babies tout court. It would ask whether everyeffort had been made to avoid civilian casualties in pursuit of ajust cause. The basic categories of “distinction” (directing thewar against enemy combatants), “proportionality” (the levelof aggression and damage must be proportional to the goodachievable), and “military necessity” (targets and objectivesmust be military) are all designed to limit civilian causalities.By these criteria alone, not even the few just wars fought inthe twentieth century have been fought justly.

7. Of all the issues with which contemporary Straussians dis-agree with the master, and there are a number, none arisesmore frequently than Strauss’s interpretation of Locke in Nat-ural Right and History (1999, 202–251). For an interestingaccount of this disagreement among the Straussians, see JamesR. Stoner, “Was Leo Strauss Wrong About John Locke?”www.claremont.org/publications/pub_print.asp?pubid=260.

8. This view is sometimes associated with the so-called Cam-bridge School.

9. What Locke actually says is that “being all equal and inde-pendent, no one ought to harm another in his Life, Health,Liberty, or Possessions. For Men being all the Workman-ship of one Omnipotent, and infinitely wise Maker . . . theyare his Property, whose Workmanship they are, made to lastduring his, not one anothers Pleasure” (Second Treatise ofGovernment, section 6).


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10. Michael Ignatieff, in Human Rights as Politics and Idolatry(2001, 57) defines human rights in terms of agency, andagency in terms of “what Isaiah Berlin meant by ‘negative lib-erty,’ the capacity of each individual to achieve rational inten-tions without let or hindrance.” If individuals have agency,Ignatieff believes, they can protect themselves against injustice.

11. For the noncontroversial claim that about half the world’spopulation still relies on subsistence agriculture, I rely ondata collected by NASA. See http://missiongeography.org/subsist1student.pdf.

12. Havel on receiving the Philadelphia Liberty Medal at Inde-pendence Hall on July 4, 1994 (New York Times, July 8, 1994,op-ed page, contains the text of his entire address).

Chapter 6

1. In fact, the death drive is more complex than this, for Freudis concerned not just with the pleasure in destruction, but thedesire of the organism for the cessation of all stimulation. Thisis one of the most controversial and least accepted assumptionsof Freud’s metapsychology, and I do not assume it here (Freud1920, 34–43).

2. Maritain (1951, 73) is quoting the French writer David Rous-set about his experiences in German concentration camps, butthe sentiment expressed here is, I believe, close to his own.Maritain does not agree with everything Rousset has to say.

3. Sometimes it is argued that the Old Testament has little to sayabout evil (ra’). It’s not true, for what are the Commandmentsagainst killing, lying, and stealing but injunctions against evil?(Exodus 20). See Alford (1997, 62–63).

4. Ignatieff attributes his view to Isaiah Berlin (1998).5. Orwell’s four examples are (in order) from a newspaper col-

umn written in 1940, recalling his first experience of Asia in1922; Keep the Aspidistra Flying; The Road to Wigan Pier; andComing up for Air.

6. Burke’s notion of freedom is “old Whig,” or classically lib-eral, at whose core is a distrust of arbitrary power. “Thereis no[thing] which [we] account . . . more dear and preciousthan this, to be guided and governed by the certain rule oflaw . . . and not by any uncertain and arbitrary form of govern-ment . . . not in accordance with received general laws.” (Hayek


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1960, 163–168). Along with Linda C. Raeder, I assume thatthe views of Hayek and Burke are virtually identical on thispoint. www.nhinet.org/raeder.htm.

7. With Arendt (1958, 80–82), I assume that Socrates regardedhis own views as opinion, doxa, not episteme (knowledge),even as he believed episteme exists. In Hannah Arendt and theChallenge of Modernity, Serena Parekh (2008, 78) interpretsArendt’s view of Socrates in this fashion. “For Socrates, thedialectic method not only is not opposed to doxa, but ratherits function is to reveal the truth of doxa . . . . This is Socrates’midwifery.”

8. It did not necessarily make the historical Socrates an empa-thetic man, at least if we are to believe the dialogues of Plato, inwhich Socrates is portrayed as closer to a “rational stone.” SeeMartha Nussbaum, The Fragility of Goodness (2001, 199). Onemust look to Greek tragedy to find empathy, the argument ofNussbaum’s book. And, of course, to Aquinas’s misericordia.

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R e f e r e n c e s

Classical references are given in the text in the form that is usual inclassical studies. References to Aquinas’s Summa Theologica are givenas ST I, ST I–II, or ST II–II, referring to the first or second part, andthen further divided into questions and articles.

Albert, Hans. 1985. Treatise on Critical Reason, trans. Mary VarneyRorty. Princeton, New Jersey: Princeton University Press.

Alford, C. Fred. 1993. “Species-Being,” in The Gettysburg Review,vol. 6, no. 4: 676–687.

Alford, C. Fred. 1997. What Evil Means to Us. Ithaca, New York:Cornell University Press.

Alford, C. Fred. 2002. Levinas, The Frankfurt School, and Psychoanal-ysis. Wesleyan, Connecticut and London: Wesleyan University Pressand Continuum Press.

Alford, C. Fred. 2006. Psychology and the Natural Law of Reparation.New York and Cambridge, UK: Cambridge University Press.

Amato, Joseph. 1975. Mounier and Maritain: A French CatholicUnderstanding of the Modern World. Ypsilanti, Michigan: SapientiaPress.

An-Na’im, Abdullahi Ahmed. 2001. “Human Rights in the MuslimWorld,” in The Philosophy of Human Rights, ed. Patrick Hayden,315–334. Saint Paul, Minnesota: Paragon House. [Originallypublished in Harvard Human Rights Law Journal, 1990.]

Arendt, Hannah. 1958. The Human Condition. Chicago, Illinois:University of Chicago Press.

Arendt, Hannah. 1973. The Origins of Totalitarianism. New York:Harcourt Brace. [New edition with added prefaces.]

Arendt, Hannah. 1977. Between Past and Future. London: Penguin.Arendt, Hannah. 2000a. “The Revolutionary Tradition and Its

Lost Treasure,” in The Portable Hannah Arendt, ed. Peter Baehr,508–540. New York: Penguin.


160 R e f e r e n c e s

Arendt, Hannah. 2000b. “The Answer of Socrates,” and “TheTwo-in-One,” in The Portable Hannah Arendt, ed. Peter Baehr,397–416. New York: Penguin.

Arnhart, Larry. 1998. Darwinian Natural Right: The Biological Ethicsof Human Nature. Albany: State University of New York Press.

Arnhart, Larry, Michael Behe, and William Dembski. 2000. “Conser-vatives, Darwin and Design: An Exchange,” First Things, no. 107(November): 23–31.

Ashcraft, Richard. 1987. Locke’s Two Treatises of Government. London:Unwin Hymen Ltd.

Banville, John. 2001. The Book of Evidence. New York: VintageInternational/Random House.

Bergson, Henri. 1955. An Introduction to Metaphysics, trans.T. E. Hulme. Indianapolis, Indiana: Bobbs-Merrill. [2nd Revisededition.]

Berlin, Isaiah. 1969. “Two Concepts of Liberty,” in Four Essays onLiberty, 118–172. Oxford, UK, and New York: Oxford UniversityPress.

Berlin, Isaiah. 1998. “European Unity and its Vicissitudes,” in TheCrooked Timber of Humanity, 175–206. Princeton, New Jersey:Princeton University Press.

Bernardin, Cardinal Joseph. 1986. “The Consistent Ethic: What Sortof Framework?” in Origins, vol. 16 (October 30): 347–350.

Berns, Laurence. 1972. “Thomas Hobbes,” in History of Political Phi-losophy, ed. Leo Strauss and Joseph Cropsey, 370–395. 2nd edition.Chicago, Illinois: Rand McNally.

Black, Max. 1964. “The Gap between ‘Is’ and ‘Should’ ” ThePhilosophical Review, vol. 73, no. 2: 165–181.

Bloch, Ernst. 1986. Natural Law and Human Dignity, trans. DennisSchmidt. Cambridge, Massachusetts: MIT Press.

Bloom, Allan. 1988. The Closing of the American Mind. New York:Touchstone Books.

Bourke, Vernon. 1988. “Natural Law, Thomism—and ProfessorNielsen,” in Saint Thomas Aquinas on Politics and Ethics, ed. PaulSigmund, 217–221. New York: W. W. Norton.

Bryce, James. 1995. The American Commonwealth, 2 vols. Indian-apolis, Indiana: Liberty Fund, vol. 2.

Burke, Edmund. 1955. Reflections on the Revolution in France, ed.Thomas Mahoney. New York: Liberal Arts Press.

Burke, Edmund. 1990. Miscellaneous Writings, ed. E. J. Payne.Library of Economics and Liberty. [www.econlib.org/library/LFBooks/Burke/brkSWv4c5.html]


R e f e r e n c e s 161

Camus, Albert. 1955. The Myth of Sisyphus and Other Essays, trans.Justin O’Brien. New York: Vintage Books.

Camus, Albert. 1988. The Stranger, trans. Matthew Ward. New York:Vintage Books/Random House.

Chesterton, G. K. 1956. Saint Thomas Aquinas: “The Dumb Ox.”New York: Image Books/Doubleday.

Cicero, Marcus Tullius. 1853. On the Republic, trans. Charles DukeYonge. London: H. G. Bohn, 1853.

Copleston, Frederick. 1959. A History of Philosophy, 9 vols. West-minster, Maryland: Newman Press, vol. 5.

Corning, Peter. 2003. “Evolutionary Ethics: An Idea Whose TimeHas Come?” Politics and the Life Sciences, vol. 22, no. 1:50–58.

Crane, Richard Francis. 2005. “Maritain’s True Humanism.” FirstThings, no. 150: 17–23.

Cranston, Maurice. 2001. “Human Rights, Real and Supposed,” inPhilosophy of Human Rights, ed. Patrick Hayden, 163–173. SaintPaul, Minnesota: Paragon House.

D’Agostino, Fred. n.d. “Original Position,” in Stanford Encyclo-pedia of Philosophy. [http://plato.stanford.edu/entries/original-position/]

De La Rey, Cheryl, and Ingrid Owens. 1998. “Perceptions of Psy-chosocial Healing and the Truth and Reconciliation Commissionin South Africa.” Peace and Conflict: Journal of Peace Psychology,vol. 4, no. 3: 257–270.

de Waal, Frans. 1996. Good Natured: The Origins of Right andWrong in Humans and Other Animals. Cambridge, Massachusetts:Harvard University Press.

de Waal, Frans. 2006. Primates and Philosophers, with replies byRobert Wright, Christine M. Korsgaard, Philip Kitcher, and PeterSinger, ed. Stephen Macedo and Josiah Ober. Princeton, NewJersey: Princeton University Press.

Dennehy, Raymond. 2002. “The Loss of the Knowing Subject inContemporary Epistemology,” in Jacques Maritain and the ManyWays of Knowing, ed. Douglas A. Ollivant, 128–149. Washington,D. C.: American Maritain Association/Catholic University ofAmerica Press.

Devine, Philip. 2000. Natural Law Ethics. Westport, Connecticut:Greenwood Press.

Doolan, Gregory. 2001. “Maritain, St. Thomas Aquinas, and theFirst Principles of Natural Law,” in Reassessing the Liberal State:Reading Maritain’s Man and the State, ed. Timothy Fuller and



John P. Hittinger, 127–139. Washington, D. C.: American MaritainAssociation/Catholic University of America Press.

Dunaway, John M. 2002. “Maritain on the Song of Songs,” inJacques Maritain and the Many Ways of Knowing, ed. DouglasA. Ollivant, 315–323. Washington, D. C.: American MaritainAssociation/Catholic University of America Press.

Dunn, John. 1969. The Political Thought of John Locke. Cambridge,UK: Cambridge University Press.

Dunn, John. 2003. Locke: A Very Short Introduction. Oxford, UK:Oxford University Press.

Durkheim, Émile. 1995. The Elementary Forms of Religious Life, trans.Karen Fields. New York: Free Press. [Original 1917.]

Dworkin, Ronald. 1993. Life’s Dominion: An Argument aboutAbortion, Euthanasia, and Individual Freedom. New York:Knopf.

Feyerabend, Paul. 1993. Against Method. 3rd edition. London: Verso.Finnis, John. 1980. Natural Law and Natural Rights. Oxford, UK:

Clarendon Press of Oxford University Press.Fisher, Helen E. 1992. Anatomy of Love: The Natural History of

Monogamy, Adultery, and Divorce. New York: Norton.Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison,

trans. Alan Sheridan. New York: Random House/Vintage.Freud, Sigmund. 1920. “Beyond the Pleasure Principle,” in The Stan-

dard Edition of the Complete Psychological Works of Sigmund Freud,ed. and trans. James Strachey et al. 24 vols. London: HogarthPress, 1953–1974, vol. 18: 3–66. [Hereafter cited as The StandardEdition.]

Freud, Sigmund. 1930. “Civilization and its Discontents,” in TheStandard Edition, vol. 21: 59–148.

Friedländer, Saul. 1993. Memory, History, and the Extermination ofthe Jews of Europe. Bloomington: Indiana University Press.

George, Robert P. 1999. In Defense of Natural Law. Oxford, UK:Clarendon Press of Oxford University Press.

Glendon, Mary Ann. 2002. A World Made New: Eleanor Roosevelt andthe Universal Declaration of Human Rights. New York: RandomHouse.

Goodreau, John R. 2001. “Kant’s Contribution to the Idea ofDemocratic Pluralism,” in Reassessing the Liberal State: ReadingMaritain’s Man and the State, ed. Timothy Fuller and John P.Hittinger, 99–112. Washington, D. C.: American Maritain Asso-ciation/Catholic University of America Press.



Gould, Stephen Jay. 1980. The Panda’s Thumb: More Reflections inNatural History. New York: W. W. Norton.

Gould, Stephen Jay. 1991. “The Moral State of Tahiti—and ofDarwin,” Natural History, vol. 10: 12–19.

Griffiths, Paul J. 2004. “Orwell for Christians,” in First Things,no. 148: 32–40.

Grisez, Germain. 1965. “The First Principle of Practical Reason. ACommentary on Summa Theologiae 1–2, Question 94, Article 2,”in Natural Law Forum, vol. 10: 168–201.

Grotius, Hugo. 1964. On the Law of War and Peace. New York: Wileyand Sons. [Original 1625.]

Guerra, Marc D. 2001. “The Delusion of Darwinian Natural Law,”in Religion and Liberty, vol. 11, no. 4: 8–10.

Gutmann, Amy. 2001. “Introduction,” in Human Rights as Poli-tics and Idolatry, by Michael Ignatieff, ed. Gutmann, vii-xxviii.Princeton, New Jersey: Princeton University Press.

Hardy, Barbara. 1968. “Towards a Poetics of Fiction: An Approachthrough Narrative,” Novel: A Forum on Fiction, vol. 2, no. 1: 5–14.

Hart, H. L. A. 1994. The Concept of Law. 2nd edition. Oxford, UK:Clarendon Press of Oxford University Press. [With new postscript.]

Hayek, Friedrich A. 1960. The Constitution of Liberty. Chicago,Illinois: The University of Chicago Press.

Havel, Václav. 1995. “Forgetting That We Are Not God.” FirstThings, no. 51: 47–50.

Hayner, Priscilla. 2001. Unspeakable Truths: Confronting State Terrorand Atrocity. New York: Routledge.

Hilberg, Raul. 1985. The Destruction of the European Jews. New York:Holmes & Meier.

Hittinger, John. 2002. Liberty, Wisdom, and Grace: Thomism andDemocratic Political Theory. Lanham, Maryland: Lexington Books.

Hume, David. 1960. An Enquiry Concerning the Principles of Morals.La Salle, Illinois: Open Court Publishing.

Hunt, Lynn. 2007. Inventing Human Rights: A History. New York:W. W. Norton.

Ignatieff, Michael. 2001. Human Rights as Politics and Idolatry,ed. Amy Gutmann, with comments by K. Anthony Appiah, DavidA. Hollinger, Thomas W. Laqueur, and Diane F. Orentlicher.Princeton, New Jersey: Princeton University Press.

Ishay, Micheline. 2008. The History of Human Rights: From AncientTimes to the Globalization Era. Berkeley, California: University ofCalifornia Press.



Johnston, David. 1986. The Rhetoric of Leviathan: Thomas Hobbesand the Politics of Cultural Transformation. Princeton, New Jersey:Princeton University Press.

Kainz, Howard. 2004. Natural Law: An Introduction andRe-examination. Chicago, Illinois: Open Court Publishing.

Kant, Immanuel. 1960. Religion within the Limits of Reason Alone,trans. Theodore Greene and John Silber. New York: Perennial.

Kant, Immanuel. 1991. The Metaphysics of Morals, trans. Mary Gregor.Cambridge, UK: Cambridge University Press.

Kant, Immanuel. 1996. Critique of Pure Reason, trans. Werner S.Pluhar. Indianapolis, Indiana: Hackett Publishing.

Kant, Immanuel. 2002. Critique of Practical Reason, trans. Werner S.Pluhar. Indianapolis, Indiana: Hackett Publishing.

Kennan, George F. 1985. American Diplomacy. Chicago, Illinois:University of Chicago Press. [Expanded edition.]

Kitcher, Philip. 2006. “Ethics and Evolution: How to Get Here fromThere,” in Primates and Philosophers, by Frans de Waal, 120–139.Princeton, New Jersey: Princeton University Press.

Kolakowski, Leszek. 1990. Modernity on Endless Trial, trans. StefanCzerniawski, Wolfgang Freis, and Agnieszka Kolakowska. Chicago,Illinois: University of Chicago Press.

Korsgaard, Christine M. 2006. “Morality and the Distinctiveness ofHuman Action,” in Primates and Philosophers, by Frans de Waal,98–119. Princeton, New Jersey: Princeton University Press.

Kraynak, Robert. 1998. “The Christian Democracy of Glenn Tinderand Jacques Maritain,” Perspectives on Political Science, vol. 72,no. 2: 69–79.

Kreeft, Peter, ed. 1990. A Summa of the Summa, by Thomas Aquinas.San Francisco: Ignatius Press.

Lauren, Paul Gordon. 2003. The Evolution of International HumanRights. 2nd edition. Philadelphia: University of PennsylvaniaPress.

Leff, Arthur Allen. 1974. “Economic Analysis of Law: Some Realismabout Nominalism,” Virginia Law Review, vol. 60: 451–454.

Levi, Primo. 1996. Survival in Auschwitz, trans. Stuart Woolf.New York: Simon & Schuster. [The same translation published inEngland is titled If This is a Man, which renders the original Italianalmost perfectly.]

Levinas, Emmanuel. 1969. Totality and Infinity: An Essay on Exteri-ority, trans. Alphonso Lingis. Pittsburgh, Pennsylvania: DuquesneUniversity Press.



Levine, Peter. 1988. Living Without Philosophy. Albany, New York:SUNY Press.

Locke, John. 1958. The Reasonableness of Christianity, ed.I. T. Ramsey. Stanford, California: Stanford University Press.

Locke, John. 1960. Two Treatises of Government, ed. Peter Laslett.New York: New American Library. [Revised edition.]

Locke, John. 1975. An Essay concerning Human Understanding,ed. Peter H. Nidditch. Oxford, UK: Clarendon Press of OxfordUniversity Press.

Lyotard, Jean-François. 1984. The Postmodern Condition: A Reporton Knowledge, trans. Geoff Bennington and Brian Massumi.Minneapolis: University of Minnesota Press.

MacIntyre, Alasdair. 1981. After Virtue. Notre Dame, Indiana:University of Notre Dame Press.

MacIntyre, Alasdair. 1999. Dependent Rational Animals: WhyHuman Beings Need the Virtues. Chicago, Illinois: Open CourtPublishing.

MacIntyre, Alasdair. 2000. “Theories of Natural Law in the Cultureof Advanced Modernity,” in Common Truths: New Perspectiveson Natural Law, ed. Edward McLean, 91–118. Wilmington,Delaware: ISI Books.

Maritain, Jacques. 1929. Three Reformers: Luther, Descartes, Rousseau.New York: Charles Scribner’s Sons.

Maritain, Jacques. 1944. “Poetic Experience,” in The Review ofPolitics, vol. 6, no. 4: 387–402.

Maritain, Jacques. 1951. Man and the State. Chicago, Illinois:University of Chicago Press.

Maritain, Jacques. 1952. “The End of Machiavellianism,” in TheRange of Reason, 134–164. New York: Charles Scribner’s Sons.

Maritain, Jacques and Raïssa Maritain. 1955a. The Situation of Poetry,trans. Marshall Suther. New York: Philosophical Library.

Maritain, Jacques. 1955b. Creative Intuition in Art and Poetry. NewYork: Meridian Books.

Maritain, Jacques. 1957. On the Philosophy of History, ed. Joseph W.Evans. New York: Charles Scribner’s Sons.

Maritain, Jacques. 1974. Art and Scholasticism and The Frontiers ofPoetry, trans. Joseph W. Evans. Notre Dame, Indiana: University ofNotre Dame Press.

Maritain, Jacques. 1984. Notebooks, trans. Joseph W. Evans.Albany, New York: Magi Books. [http://maritain.nd.edu/jmc/etext/nb01.htm]



Maritain, Jacques. 1986. The Rights of Man and Natural Law, trans.by Doris C. Anson. San Francisco, California: Ignatius Press.

Maritain, Jacques. 2001. Natural Law: Reflections on Theory andPractice, ed. William Sweet. South Bend, Indiana: St. Augustine’sPress.

Maritain, Raïssa. 1961. The Memoirs of Raïssa Maritain, trans. JulieKernan. Garden City, New York: Doubleday.

McInerney, Ralph. 2000. “Are There Moral Truths That EveryoneKnows?” in Common Truths: New Perspectives on Natural Law, ed.Edward McLean, 1–18. Wilmington, Delaware: ISI Books.

Midgley, Mary. 1994. The Ethical Primate: Humans, Freedom andMorality. London: Routledge.

Nickel, James W. 2007. Making Sense of Human Rights. 2nd edition.Malden, Massachusetts: Blackwell Publishing.

Niebuhr, Reinhold. 1988. “Christian Faith and Natural Law,” in SaintThomas Aquinas on Politics and Ethics, ed. Paul Sigmund, 222–225.New York: W. W. Norton.

Niebuhr, Reinhold. 2008. The Irony of American History, intro.Andrew J. Bacevich. Chicago, Illinois: University of Chicago Press.

Nielsen, Kai. 1988. “An Examination of the Thomistic Theory ofNatural Moral Law,” in Saint Thomas Aquinas on Politics and Ethics,ed. Paul Sigmund, 211–216. New York: W. W. Norton.

Nussbaum, Martha, ed. 1978. Aristotle’s De Motu Animalium.Princeton: Princeton University Press.

Nussbaum, Martha. 2001. The Fragility of Goodness: Luck and Ethicsin Greek Tragedy and Philosophy, 2nd edition. Cambridge, UK:Cambridge University Press.

Olson, James S. and Randy Roberts, ed. 1998. My Lai: A Brief Historywith Documents. New York and London: Palgrave Macmillan.

Parekh, Bhikhu. 2002. Rethinking Multiculturalism: Cultural Diver-sity and Political Theory. Cambridge, Massachusetts: Harvard Uni-versity Press.

Parekh, Serena. 2008. Hannah Arendt and the Challenge of Moder-nity: A Phenomenology of Human Rights. New York: Routledge.

Perry, Michael. 1998. The Idea of Human Rights: Four Inquiries.Oxford, UK, and New York: Oxford University Press.

Peters, Richard. 2006. “Hobbes, Thomas” (15881679): An entryfrom Gale’s Encyclopedia of Philosophy [eDoc/Amazon Short];Ch. 4; 9. [http://www.amazon.com / HOBBES-THOMAS-15881679-Encyclopedia-Philosophy/dp/B001SCJPWS/ref=sr_1_1?ie=UTF8&s=books&qid=1259778354&sr=8-1-spell]



Pieper, Josef. 1991. Guide to Thomas Aquinas, trans. Richard Winstonand Clara Winston. San Francisco, California: Ignatius Press.

Pogge, Thomas W. 2001. “How Should Human Rights Be Con-ceived?” in Philosophy of Human Rights, ed. Patrick Hayden,187–211. Saint Paul, Minnesota: Paragon House.

Putnam, Robert D. 2001. Bowling Alone: The Collapse and Revival ofAmerican Community. New York: Simon & Schuster.

Randall, John H., Jr. 1940. The Making of the Modern Mind. Boston:Houghton Mifflin.

Rawls, John. 1993. Political Liberalism. New York: Columbia Univer-sity Press.

Rawls, John. 1999a. A Theory of Justice. Cambridge, Massachusetts:Belknap Press of Harvard University Press. [Revised edition.]

Rawls, John. 1999b. “The Idea of Public Reason Revisited,” inThe Law of Peoples, 131–180. Cambridge, Massachusetts: HarvardUniversity Press.

Rieff, David. 1992. “Letter from Bosnia,” The New Yorker (November23): 82–95.

Rorty, Richard. 1989. Contingency, Irony, and Solidarity. Cambridge,UK: Cambridge University Press.

Rorty, Richard. 2001. “Human Rights, Rationality, and Sentimental-ity,” in Philosophy of Human Rights, ed. Patrick Hayden, 241–257.Saint Paul, Minnesota: Paragon House. [Originally published in OnHuman Rights: Oxford Amnesty Lectures, 1993.]

Rosenthal, Abigail. 1987. A Good Look at Evil. Philadelphia, Pennsyl-vania: Temple University Press.

Sartre, Jean-Paul. 1956. Being and Nothingness, trans. Hazel Barnes.New York: Washington Square Press.

Sartre, Jean-Paul. 1999. “The Humanism of Existentialism,” in John-Paul Sartre: Essays in Existentialism, ed. Wade Baskin, 31–62.Secaucus, New Jersey: Carol Publishing Group.

Schall, James V. 1998. Jacques Maritain: The Philosopher in Society.Lanham, Maryland: Rowman & Littlefield.

Schneck, Stephen. 2004. “Strauss contra Aquinas: The Problem ofNature for Right,” paper presented at the Annual Meeting of theAmerican Political Science Association, Chicago, Illinois.

Stanlis, Peter J. 2003. Edmund Burke and the Natural Law, intro.V. Bradley Lewis. New Brunswick, New Jersey: TransactionPublishers.

Stoner, James R. “Was Leo Strauss Wrong about John Locke?”[www.claremont.org/publications/pub_print.asp?pubid=260]



Strauss, Leo. 1999. Natural Right and History. Chicago, Illinois:University of Chicago Press.

Suto, Taki. 2004. “Virtue and Knowledge: Connatural KnowledgeAccording to Thomas Aquinas,” Review of Metaphysics, vol. 58:61–67.

Tinder, Glenn. 1989. “Can We Be Good Without God: On thepolitical meaning of Christianity,” in The Atlantic. [www. theat-lantic.com/politics/religion/goodgod.htm]

Veatch, Henry. 1978. “Natural Law: Dead or Alive?” Literatureof Liberty, vol. 1, no. 4: 7–31. [oll.libertyfund.org/index.php?Itemid=259&id=168&option=com_content&task=view]

Wade, Nicholas. 2007. “Scientist Finds the Beginnings of Moral-ity in Primate Behavior.” the New York Times, March 20. [www.nytimes.com/2007/03/20/science/20moral.html]

Waters, Tony. 2008. The Persistence of Subsistence Agriculture: LifeBeneath the Level of the Marketplace. Lanham, Maryland: LexingtonBooks/Rowman & Littlefield.

Weber, Max. 1958. The Protestant Ethic and the Spirit of Capitalism,trans. Talcott Parsons. New York: Charles Scribner’s Sons.

Weil, Simone. 1977. “Reflections on the Right Use of School Stud-ies with a View To the Love of God,” in The Simone Weil Reader,ed. George Panichas, 44–52. Wakefield, Rhode Island: Moyer Bell.

Weston, Burns H. 1992. “Human Rights,” in Human Rights in theWorld Community. 2nd edition, ed. Richard Pierre Claude andBurns H. Weston, 14–29. Philadelphia, Pennsylvania: University ofPennsylvania Press.

Wilson, James Q. 1993. The Moral Sense. New York: The FreePress/Simon & Schuster.

Wittgenstein, Ludwig. 1973. Philosophical Investigations, trans.G. E. M. Anscombe. 3rd edition. Saddle River, New Jersey: PrenticeHall.

Wittgenstein, Ludwig. 2007. Tractatus Logico-Philosophicus, trans.C. K. Ogden. New York: Cosimo.

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I n d e x

Note: the letter ‘n’ followed by locators denotes note numbers.

absolutism, 69absurdity, 63–5, 117, 137, 156n4affective cognition, see connaturalityafter-knowledge, 53–4, 68After Virtue (MacIntyre), 9akrasia (weakness of will), 140Albert, Hans, 121Alford, C. Fred

Avalanche Man story, 9–10,149n5

ethics curriculum experience, 7–8on teaching Korean literature,

79–80Alinsky, Saul, 69–70L’amour fou (“mad love”), 54–8angelism, 61An-Na’im, Abdullahi Ahmed, 112Antigone (Sophocles), 2, 22, 42Aquinas, see Saint Thomas AquinasArendt, Hannah, 116, 144–6arguments, settling of, 146–7Aristotle

final cause concept, 26–7, 29formal cause concept, 28, 39–40knowledge of reality, 26megalopsychos, 41–2metaphysics of, 39–40naturalism of, 74natural reality of, 24Nicomachean Ethics, 43worldview, 9

Arnhart, Larry, 91–2, 93–4,101–2, 104

Artists’ knowledge, 52–3aspect seeing, 99, 100aspirational rights, 130–1

see also human rightsatheism, 30attachment, human, 91attention, paying, 143–6Avalanche Man story, 9–10, 149n5awareness, sharing with others,

143–4

Banville, John, 89–90basic rights, viii

see also human rightsBergson, Henri, 49–50Berlin, Isaiah, 129Bernardin, Joseph, 111–12Bible, spirit of, 24Biden, Joseph, 10–11biological nature, 93Bloch, Ernst, 71Bloom, Allan, 6–7body politic, 69, 72The Book of Evidence (Banville),

89–90bourgeois civilization, 67bourgeois individualism, 59–60Bourke, Vernon, 14Bryce, James, 74Burke, Edmund, 16–20, 46–7, 145


170 I n d e x

Camus, Albert, 65, 117Cassin, René, 78categorical imperative, 86Catholic Church, 91–2, 101,

111–12choice, see existential burden of

choiceChristian democracy, 73–4Cicero, 21–3civic law, 4Civilization and its Discontents

(Freud), 152n6civil rights movement, 71civil society, 69, 70, 80The Closing of the American Mind

(Bloom), 7common good, 72–3common law natural law, 77–81,

104, 147common residue, 110–11communitarian ideal, 8community, 32, 40community-supporting traits, 87–8connaturality

Aristotelian metaphysics and,39–40

knowledge by inclination, 14locus of, 70love of knowledge and, 35–9as moral intuition, 13

considered reflection, 53–4The Consistent Ethic (Bernardin),

111–12Contingency, Irony, and Solidarity

(Rorty), 119, 137Copleston, Frederick, 84Corning, Peter, 90–1Cranston, Maurice, 129, 130Creative Intuition in Art and Poetry

(Maritain), 53creative love, 76cruelty, 65cultural relativism, 8

Darwin, Charles, 92, 115Darwinian Natural Right: The

Biological Ethics of HumanNature (Arnhart), 91–2, 101

death drive, 58Decalogue summary, 40decisionism, 121definitional strategy, 119–20dehumanization, 136Dennehy, Raymond, 26Descartes, René, 61–2destruction, meaninglessness

and, 144see also Rausch (intoxication of

destruction)de Waal, Frans

community-supporting traits,87–8

on empathy, 94–5evolutionary morality, 100–1evolutionary natural law, 104on religions, 90social contract theory, 103

dignitarian rights/tradition, 78Discipline and Punish

(Foucault), 136discourse/dialectic, 38–9Divine Law, 150–1n9Divine revelation, 24divorce, 92, 101–2domination, 46–7Dunaway, John, 68Durkheim, Émile, 154–5n4Dworkin, Ronald, 117, 120

East India Company, 17emancipation, 68emotional contagion, 94empathy/empathizing, 94–5, 146Endlösung (Final Solution), 149n2Enlightenment, 107–8An Enquiry Concerning the

Principles of Morals (Hume), 95


I n d e x 171

Erosand death, 139, 152n6, 159n6and evil, 57–9

An Essay Concerning HumanUnderstanding (Locke), 125–7

Eternal Law, 5, 17, 30, 150–1n9ethical judgment, 99ethics, 138evil

as absence of good, 139avoidance of, 30biblical roots, 140–1as challenge to natural law, 138confrontation of, 139as defect of will, 153n12and Eros, 57–9

Evolutionary Ethics: An Idea WhoseTime Has Come? (Corning),90–1

evolutionary natural lawhuman behavior and, viiis/ought problem, 87, 98morality/moral sense, 88–9, 96as rhetorical trope, 103–4shared ideals, 91as stunted narrative, 100–5tracking lineage of, 21

The Evolution of InternationalHuman Rights (Lauren), 123

existential burden of choicedescribed, 142paying attention, 143–6

existential yield, 117

The Fall, 44–5final cause concept, 26–7, 29Final Solution, 149n2Finnis, John, 30, 84, 85–6, 100First Discourse (Rousseau), 62first principles

derivations from, 15derived from natural law, 127long-term error and, 33speculative knowledge of, 31

First Treatise of Government(Locke), 124

Fisher, Helen, 102formal cause concept, 28–9, 39–40Foucault, Michel, 136foundational claims, 110, 119–20founding fathers, 74freedom, 68, 74–6, 78French Revolution, 17Freud, Sigmund, 57, 58, 139,

152n6Friedländer, Saul, 63, 141, 144friendship, 32, 35, 54–5, 57fundamental foundations, 121

Gandhi, Mahatma, 71Geneva Convention (1977), 5George, Robert, 30, 84, 85, 100German civic law, 4, 12German robbers/warriors, 40–1Glendon, Mary Ann, 111Glorious Revolution (English),

17–18god/God, view of, 22–3Goering, Hermann, 4, 6good

vs. evil, 30, 32–3seeking/doing, 31see also common good

government, as social contract,19–20

governments, threats posed by,113–16

Greek agonal culture, 41Grisez, Germain, 86grosso modo, 77, 110, 122, 146,

153n19Grotius, Hugo, 30Gutmann, Amy, 111

Hardy, Barbara, 15Hart, H. L. A., 11–13Havel, Václav, 60, 132Hawthorne, Nathaniel, 51–2Hilberg, Raul, 64


172 I n d e x

Himmler, Heinrich, 149n2The History of Human Rights

(Ishay), 124Hittinger, John, 51–2Hobbes, Thomas

fear of death, 32human nature, 93Leviathan, 155n7social contract theory, 102

Holocaust, 4, 64, 149n2human attachment, 91human goods, 30–1human nature, 11–12, 94human rights

as aspirational, 130–1individual rights and, 2as natural law, viii, 2–3negative human rights, 129–32universal nature of, 129–30see also international human rights

human rights declaration, seeUniversal Declaration ofHuman Rights (UnitedNations)

Hume, Davidhumankind, party of, 95Hume’s Guillotine, 83is/ought problem, 84, 87, 98virtues, 96–7

Hume’s Guillotine, 83Hunt, Lynn, 119

Ignatieff, Michaelhuman rights language/rhetoric,

109–10, 112–13, 147moral law, necessity of, 141nation-state worship, 115–16

The Iliad, 41inclinationes naturales, 43, 46, 53,

70, 144individualism, 59–60International Criminal Court, 4

international human rightsgovernments, threats posed by,

113–16in history, 107–8natural law’s relevance to, 127–9negative human rights, 129–32as politics and idolatry, 109–13respecting otherness, 132–4secular vs. religious versions,

116–17intuition

knowledge through, 50self-justification and, 15subjective experience of being, 68see also moral intuition

Inventing Human Rights(Hunt), 119

Ishay, Micheline, 107–8, 124is/ought problem, 84, 87, 98

Jesus Christ, 24judgement by inclination, see

connaturalityjudgment, ethical, 99justice, 66, 73, 133justification, philosophical, 100just law, 5just war theory, 156n6

Kainz, Howard, 37Kant, Immanuel, 74–5, 86Kennan, George F., 133King, Martin Luther, Jr., 5, 7, 147Kitcher, Philip, 97–8knowledge by inclination, 14, 70knowledge through intuition, 50Kolakowski, Leszek, 128Korsgaard, Christine, 96, 98Kraynak, Robert, 76Kreeft, Peter, 30

Lauren, Paul, 123The Law of Peoples (Bernardin), 112Leff, Arthur Allen, 119–20


I n d e x 173

Letter from Birmingham Jail(King), 5

Levi, Primo, 109Leviathan (Hobbes), 155n7Levinas, Emmanuel, 57liberalism, 60, 102liberty, concept of, 129Locke, John

limits/obstacles to naturallaw, viii, 146–7

natural law as duty, 132natural rights and natural law,

123–7social contract theory, 19–20state of nature, ix

looking (paying attention), 143–6love

l’amour fou (“mad love”), 54–8creativity and, 76as realism, 29

Luther, Martin, 61

MacIntyre, Alasdair, 9, 12, 14, 41–2Magna Charta, 17, 18maieutic process, 1, 149n1Making Sense of Human Rights

(Nickel), 123Man and the State (Maritain), 54,

68, 69–70manifesto rights, see aspirational

rightsMaritain, Jacques

absurdity, 63–5after-knowledge, 53–4, 68common law natural law, 77–81,

104, 147common residue, 110–11community, 46connaturality, 13, 16, 70connatural knowledge, 122evil, confrontation with, 141freedom and rights, 74–6knowledge by inclination, 14, 43on love, 54–9, 97

personalism, 59–63poetic attitude, 51–4state, man and the, 69–74Thomist affiliation, 49–51

Maritain, Raïssa, 49, 63, 152n1meaninglessness, destruction

and, 144see also Rausch (intoxication of

destruction)megalopsychos, 41–2metanarratives, 85–6metaphysics, Aristotelian, 39–40Midgley, Mary, 103misericordia (pity), 41modes of responsibility, 86moral decisionism, 121moral intuition

as connaturality, 37, 100narrative and, 19self-justification and, 15as undeveloped capability, 13–14see also connaturality; inclinationes

naturales; intuitionThe Moral Sense (Wilson), 88moral sense theory, 84moral sensibility, narrative and, 101moral universals, 88–9Mounier, Emmanuel, 63, 66murder, 4, 33–4

narrativeabout intuition, 16dialectic of, 144natural law and, 44–7sharing stories, 97–100

narrative theory, viiNatural History of Monogamy,

Adultery, and Divorce(Fisher), 102

naturalistic fallacy, 12natural law

as absolute, viiibelief in God and, 23


174 I n d e x

natural law (Continued)biological nature and, 93vs. civic law, 2cultural/institutional

barriers, 105definition/proof of, 1as duty, 132Greek heritage, 140human nature in, 94human rights as, 2–3interpretation of, viinarrative and, 44–7, 98–9as “reason reflecting on nature,”

13, 135violation of, 34, 141–2as “written on the heart,” vii, viii,

13, 135–6, 138see also evil; new natural law;

stories; Thomistic natural lawnatural law positivism, 10–13natural necessity, 12natural reality, 24nature, defined, 13Nazi Germany, 4, 7, 12, 71necessity, see natural necessitynegative human rights, 129–32negative liberty, 129, 157n10new natural law, viii, 83–7, 100–5Nickel, James, 123Nicomachean Ethics (Aristotle), 43Niebuhr, Reinhold, viii, 44,

132–3Nielsen, Kai, 39, 53Nietzsche, Friedrich, 117Nuremberg Trials, 4, 6, 149n2Nussbaum, Martha, 28, 39

On the Republic (Cicero), 21–2The Origin of Species (Darwin), 92The Origins of Totalitarianism

(Arendt), 116, 144–5Orwell, George, 143otherness, respecting, 132–4

“ought” statements, see is/oughtproblem

overlapping consensus, 111–12,122, 126

pain, 136“party of humankind,” 95–6, 104Perry, Michael J., 116–17,

119–21, 123personalism, 59–63, 72persuasion, 99Peter, Richard, 93philosophical justification, 100pity, 41pluralism, 63, 80poetry/poetic experience, 51–4Pogge, Thomas, 108, 113–16Political Liberalism (Rawls), 111Popper, Karl, 121positive liberty, 129positivistic natural law, 10–13practical syllogism, 33–4, 36–7praise, desire for, 97prejudices, 19, 80, 125–6prelinguistic consciousness, 135,

137, 138

Quran, 112

Rausch (intoxication of destruction),63, 141, 144

Rawls, John, 111–12, 122, 126realism and reality

key doctrinal elements, 25love and, 29religious signs/symbols and, 24–5see also Thomistic realism

reasonduty, love and pity, 131–2faith and, 61, 121good and evil, 31morality and, 89–90in moral knowledge, 36–7narrative and, 44–5natural law and, 125–7, 148


I n d e x 175

nature and, 13, 22perversion of, 34see also realism and reality

The Reasonableness of Christianity(Locke), 125, 127

Reflections on the Revolution inFrance (Burke), 145

relativism, 6–8religion

founding fathers and, 74humanity’s place in universe,

117, 122as narrative, 118–19state sponsorship of, 73

religious stories, 122representative thinking, 145responsibility, modes of, 86Rieff, David, 136–7rights, see human rightsRorty, Richard, 45, 118–19, 121–2,

136–8Rousseau, Jean-Jacques, 62

sacred, human life as, 120Saint Thomas Aquinas

classical realism and, 25imprisonment story, 23–4, 150n1influence on natural law, 21pluralistic democratic politics

and, 74theological point of view, 24–5unjust law, 5see also connaturality; Thomistic

natural law; Thomistic realismSartre, Jean-Paul, 142Satan, 64Satyagraha (power of truth), 71Second Treatise of Government

(Locke), 123, 125Second World War, 4security, 32segregation, 5, 34, 35, 71, 147–8Serbian atrocities, 136–7sexual harassment, 99–100

shared values, 9Sharia, 112, 155–6n3The Situation of Poetry (Maritain),

52–3slavery, 147–8Smith, Adam, 96sociability/social consciousness,

37, 38–9social contract, 19–20social contract theory, 102social experience, 70–1Socrates, 58, 146Socratic method, 1Song of Songs (Solomon), 56Sophocles, 2sovereignty, 69speculative knowledge of first

principles, 31state, man and the, 69–74state sovereignty, 69stories

sharing/telling of, 97–100stunted narratives, 100–5

Strauss, Leo, 38Summa against the Gentiles

(Aquinas), 24Sunna, 112superior law principle, 17Suto, Taki, 36–7, 38, 68syllogism, see practical syllogismsympathies, sharing stories and,

97–100synderesis, 33, 34, 38

Talmud, 117telos (ultimate aim/end), 26–7, 29theological point of view, 24–5theory of mind, 154n3Theory of Moral Sentiments

(Smith), 96Thomistic natural law

evil, view of, 34, 139inclinationes naturales, 43, 46,

53, 70


176 I n d e x

Thomistic natural law (Continued)misericordia, 41as obsolete metaphysics,

39–40participation in Eternal Law, 30practical/speculative intellect

comparison, 31preservation of life, 32synderesis, 33, 34, 38see also connaturality

Thomistic realismabstract universal/principles, 27Aristotelian abstraction and,

25–6formal cause and, 28–9love and, 29see also connaturality; realism and

realityThree Reformers: Luther, Descartes,

Rousseau (Maritain), 61,67, 144

Tinder, Glenn, 117–18Tocqueville, Alexis de, 69–70Todestrieb (death drive), 58torture, 136totalitarianism, 18–19, 144–5trope, 155n8truth

artists and, 52as common residue, 111conceptual, 33of natural law, 35

power of, 71as relative, 6

truth and reconciliationcommissions, 66

Universal Declaration of HumanRights (United Nations)

articles of, 3–4, 127natural rights, 123overlapping consensus, 122purpose of, 115rights guaranteed by, 114social rights, 129–30universal agreement, 76–8

universalism, 86universal values, 88–9l’univers concentrationnaire, 71, 138unjust law, 5

values, see shared valuesVeatch, Henry, 86violence, necessity of, 71–2virtues, list of, 96–7

Wannsee Conference, 149n2war, see Second World WarWeber, Max, 63will, weakness of, 140Wilson, James Q., 6–7, 8, 88Wittgenstein, Ludwig, 53, 99“written on the heart”

meaning of, 13natural law as, vii, viii, 135–6, 138

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