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n 1776, Thomas Jefferson wrote in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” 1 Jefferson had read the work of English philosopher John Locke, who had written in his Second Treatise on Government that all human beings were of the same species, born with the same basic capacities. 2 Thus, Locke argued, because all humans had the same basic nature, they should be treated equally. Following the 2001 terrorist attack on the World Trade Center and the Pentagon, and with the U.S. invasion of Afghanistan, the question arose about what to do with people captured by the United States and considered to be terrorists. Since 2004, they have been transferred to Guantanamo Bay in Cuba, a U.S. naval base on the southeastern side of the island (the United States still held a lease to this land because of the 1903 Cuban-American Treaty). A prison was set up, and those who were thought to be members, supporters, or sympathizers of al Qaeda or the Taliban were transferred there. It was said that they were not part of any army of any state and thus not prisoners of war but “enemy combatants” and thus not covered by any of the protections of the Geneva Conventions. They also were not given the protections of U.S. laws, and they were denied such basic human rights as knowing the charges against them and being allowed to defend themselves in court. As
of 2007, many of the 500 or so detainees detainees had been sent back to the countries of their origins. Some were finally allowed lawyers, although not of their own choice. U.S. courts had ruled that th at the detainees must be given trials, not in the United States, but in U.S. military courts. As of this time, more prisoners are scheduled for release and some 250 may be held indefinitely. 3 (Also see the discussion of torture in Chapter 4.) What is meant by “human rights”—and does every person possess such rights? This is one of the questions addressed in this chapter. The Nuremberg trials were trials of Nazi war criminals held in Nuremberg, Germany, from 1945 to 1949. There were thirteen trials in all. In the first trial, Nazi leaders were found guilty of violating international law by starting an aggressive war. Nine of them, including Hermann Goering and Rudolf Hess, were sentenced to death. In other trials, defendants were accused of committing atrocities against civilians. Nazi doctors who had conducted medical experiments on those imprisoned in the death camps were among those tried. Their experiments maimed and killed many people, all of whom were unwilling subjects. For example, experiments for the German air force were conducted to determine how fast people would die in very thin air. Other experiments tested the effects of freezing water on the human body. The defense contended that the military personnel, judges, and doctors were only following orders. However, the prosecution argued successfully that 97
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even if the experimentation did not violate the defendants’ own laws, they were still “crimes against humanity.” The idea was that a law more basic than civil laws exists—a moral law—and these doctors and others should have known what this basic moral law required. The idea that the basic moral law can be known by human reason and that we know what it requires by looking to human nature are two of the tenets of natural law theory. Some treatments of human rights also use human nature as a basis. According to this view, human rights are those things that we can validly claim because they are essential for functioning well as human beings. This chapter will present the essential elements of both of these theories.
NATURAL LAW THEORY One of the first questions to ask concerns the kind of law that natural law is. After addressing this question, we will examine the origins of this theory. Then we will explain what the theory holds. Finally, we will suggest things to think about when evaluating the theory. What Kind of Law Is Natural Law? Let us consider first, then, what type of law that natural law is. The natural law, as this term is used in discussions of natural law theory, should not be confused with those other “laws of nature” that are the generalizations of natural science. The laws of natural science are descriptive laws. They tell us how scientists believe nature behaves. Gases, for example, expand with their containers and when heat is applied. Boyle’s law about the behavior of gases does not tell gases how they ought to behave. In fact, if gases were found to behave differently from what we had so far observed, then the laws would be changed to match this new information. Simply put, scientific laws are descriptive generalizations of fact. Moral laws, on the other hand, are prescriptive laws. They tell us how we ought to behave. The natural law is the moral law written into nature itself. What we ought to do, according to this theory, is determined by considering certain aspects of nature. In particular, we ought to examine our
nature as human beings to see what is essential for us to function well as members of our species. We look to certain aspects of our nature to know what is our good and what we ought to do. Civil law is also prescriptive. As the moral law, however, natural law is supposed to be more basic or higher than the laws of any particular society. Although laws of particular societies vary and change over time, the natural law is supposed to be universal and stable. In an ancient Greek tragedy by Sophocles, the protagonist Antigone disobeys the king and buries her brother. She did so because she believed that she must follow a higher law that required her to do this. In the story, she lost her life for obeying this law. In the Nuremberg trials, prosecutors had also argued that there was a higher law that all humans should recognize—one that takes precedence over state laws. People today sometimes appeal to this moral law in order to argue which civil laws ought to be instituted or changed. 4
HISTORICAL ORIGINS: ARISTOTLE The tradition of natural law ethics is a long one. Although one may find examples of the view that certain actions are right or wrong because they are suited to or go against human nature before Aristotle wrote about them, he is the first to develop a complex ethical philosophy based on this view. Aristotle was born in 384 B.C. in Stagira in northern Greece. His father was a physician for King Philip of Macedonia. Around age seventeen, he went to study at Plato’s Academy in Athens. Historians of philosophy have traced the influence of Plato’s philosophy on Aristotle, but they have also noted significant differences between the two philosophers. Putting one difference somewhat simply, Plato’s philosophy stresses the reality of the general and abstract, this reality being his famous forms or ideas that exist apart from the things that imitate them or in which they participate. Aristotle was more interested in the individual and the concrete manifestations of the forms. After Plato’s death, Aristotle traveled for several years and then for two or three years was the tutor to A lexander, the young son of King Philip, who later became known as Alexander the Great. In 335 B.C., Aristotle returned to Athens and organized his own school called the Lyceum.
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also can know what a good squirrel is. A good specimen of a squirrel is one that is effective, successful, and functions well. It follows the pattern of development and growth it has by nature. It does, in fact, have a bushy tail and good balance, and it knows how to find and store its food. It would be a bad example of a squirrel or a poor one that had no balance, couldn’t find its food, or had no fur and was Nature, Human Nature, and the sickly. It would have been better for the squirrel if Human Good its inherent natural tendencies to grow and develop Aristotle was a close observer of nature. In fact, in and live as a healthy squirrel had been realized. his writings he mentions some 500 different kinds According to the natural law tradition from 7 of animals. He noticed that seeds of the same sort Aristotle on, human beings are also thought to be always grew to the same mature form. He opened natural beings with a specific human nature. They developing eggs of various species and noticed have certain specific characteristics and abilities that these organisms manifested a pattern in their that they share as humans. Unlike squirrels and development even before birth. Tadpoles, he might acorns, human beings can choose to do what is have said, always follow the same path and their good or act against it. Just what is their good? become frogs, not turtles. So also with other living Aristotle recognized that a good eye is a healthy eye things. Acorns always become oak trees, not elms. that sees well. A good horse is a well-functioning He concluded that there was an order in nature. It horse, one that is healthy and able to run and do was as if natural beings such as plants and animals what horses do. What about human beings? Was had a principle of order within them that directed there something comparable for the human being them toward their goal—their mature final form. as human? Was there some good for humans as This view can be called a teleological view from the humans? Greek word for goal, telos, because of its emphasis Just as we can tell what the good squirrel is on a goal embedded in natural things. It was from from its own characteristics and abilities as a this that Aristotle developed his notion of the good. squirrel, according to natural law theory, the same According to Aristotle, “the good is that at which should be true for the human being. For human all things aim.” 8 We are to look at the purpose or beings to function well or flourish, they should end or goal of some activity or being to see what is perfect their human capacities. If they do t his, they its good. Thus, the good of the shipbuilder is to will be functioning well as human beings. They build ships. The good of the lyre player is to play will also be happy, for a being is happy to the well. Aristotle asks whether there is anything that extent that it is functioning well. Aristotle believed is the good of the human being—not as shipbuilder that the ultimate good of humans is happiness, or lyre player, but simply as human. To answer this blessedness, or prosperity: eudaimonia. But in question, we must first think about what it is to be what does happiness consist? To know what haphuman. According to Aristotle, natural beings come piness is, we need to know what is the function of in kinds or species. From their species flow their the human being. essential characteristics and certain key tendencies Human beings have much in common with or capacities. A squirrel, for example, is a kind of lower forms of beings. We are living, for example, animal that is, first of all, a living being, an animal. just as plants are. Thus, we take in material from It develops from a young form to a mature form. It outside us for nourishment, and we grow from an is a mammal and has other characteristics of mam- immature to a mature form. We have senses of mals. It is bushy-tailed, can run along telephone sight and hearing and so forth as do the higher wires, and gathers and stores nuts for its food. animals. But is there anything unique to humans? From the characteristics that define a squirrel, we Aristotle believed that it was our “rational element” There he taught and wrote almost until his death thirteen years later in 322 B.C.5 Aristotle is known not only for his moral theory but also for writings in logic, biology, physics, metaphysics, art, and politics. The basic notions of his moral theory can be found in his Nicomachean Ethics, named for his son Nicomachus.6
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that was peculiar to us. The good for humans, then, should consist in their functioning in a way consistent with and guided by this rational element. Our rational element has two different functions: One is to know, and the other is to guide choice and action. We must develop our ability to know the world and the truth. We must also choose wisely. In doing this, we will be functioning well specifically as humans. Yet what is it to choose wisely? In partial answer to this, Aristotle develops ideas about prudential choice and suggests that we choose as a prudent person would choose. One of the most well known interpreters of Aristotle’s philosophy was Thomas Aquinas (1224–1274). Aquinas was a Dominican friar who taught at the University of Paris. He was also a theologian who held that the natural law was part of the divine law or plan for t he universe. The record of much of what he taught can be found in his work the Summa Theologica.9 Following Aristotle, Aquinas held that the moral good consists in following the innate tendencies of our nature. We are by nature biological beings. Because we tend by nature to grow and mature, we ought to preserve our being and our health by avoiding undue risks and doing what will make us healthy. Furthermore, like sentient animals, we can know our world through physical sense capacities. We ought to use our senses of touch, taste, hearing, and sight; we ought to develop and make use of these senses for appreciating those aspects of existence that they reveal to us. We ought not to do, or do deliberately, what injures these senses. Like many animals we reproduce our kind not asexually but sexually and heterosexually. This is what nature means for us to do, according to this version of natural law theory. (See further discussion of this issue in Chapter 10 on sexual morality.) Unique to persons are the specific capacities of knowing and choosing freely. Thus, we ought to treat ourselves and others as beings capable of understanding and free choice. Those things that help us pursue the truth, such as education and freedom of public expression, are good. Those things that hinder pursuit of the truth are bad. Deceit and lack of access to the sources of knowledge are morally objectionable simply because they prevent
us from fulfilling our innate natural drive or orientation to know the way things are.10 Moreover, whatever enhances our ability to choose freely is good. A certain amount of self-discipline, options from which to choose, and reflection on what we ought to choose are among the things that enhance freedom. To coerce people and to limit their possibilities of choosing freely are examples of what is inherently bad or wrong. We also ought to find ways to live well together, for this is a theory according to which “no man—or woman—is an island.” We are social creatures by nature. Thus, the essence of natural law theory is that we ought to further the inherent ends of human nature and not do what frustrates human fulfillment or flourishing.
Evaluating Natural Law Theory Natural law theory has many appealing characteristics. Among them are its belief in the objectivity of moral values and the notion of the good as human flourishing. Various criticisms of the theory have also been advanced, including the following two. First, according to nat ural law theory, we are to determine what we ought to do from deciphering the moral law as it is written into nature—specifically, human nature. One problem that natural law theory must address concerns our ability to read nature. The moral law is supposedly knowable by natural human reason. However, throughout the history of philosophy various thinkers have read nature differently. Even Aristotle, for example, thought that slavery could be justified in that it was in accord with nature. 11 Today people argue against slavery on just such natural law grounds. Philosopher Thomas Hobbes defended the absolutist rule of despots and John Locke criticized it, both doing so on natural law grounds. Moreover, traditional natural law theory has picked out highly positive traits: the desire to know the truth, to choose the good, and to develop as healthy mature beings. Not all views of the essential characteristics of human nature have been so positive, however. Some philosophers have depicted human nature as deceitful, evil, and uncontrolled. This is why Hobbes argued that we need a strong government. Without it, he wrote, life in a state of nature would be “nasty, brutish, and short.”12
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Moreover, if nature is taken in the broader sense—meaning all of nature—and if a natural law as a moral law were based on this, then the general approach might even cover such theories as Social Darwinism. This view holds that because the most fit organisms in nature are the ones that survive, so also the most fit should endure in human society and the weaker ought to perish. When combined with a belief in capitalism, this led to notions such as that it was only right and according to nature that wealthy industrialists at the end of the nineteenth century were rich and powerful. It also implied that the poor were so by the designs of nature and we ought not interfere with this situation. A second question raised for natural law theory is the following. Can the way things are by nature provide the basis for knowing how they ought to be? On the face of it, this may not seem right. Just because something exists in a certain way does not necessarily mean that it is good. Floods, famine, and disease all exist, but that does not make them good. According to David Hume, as noted in our discussion of Mill’s proof of the principle of utility in Chapter 4, you cannot derive an “ought” from an “is.”13 Evaluations cannot simply be derived from factual matters. Other moral philosophers have agreed. When we know something to be a fact, that things exist in a certain way, it still remains an open question whether it is good. However, the natural law assumes that nature is teleological, that it has a certain directedness. In Aristotle’s terms, it moves toward its natural goal, its final purpose. Yet from the time of the scientific revolution of the seventeenth century, such final purposes have become suspect. One could not always observe nature’s directedness, and it came to be associated with the notion of nonobservable spirits directing things from within. If natural law theory does depend on there being purposes in nature, it must be able to explain how this can be so. Consider one possible explanation of the source of whatever purposes there might be in nature. Christian philosophers from Augustine on believed that nature manifested God’s plan for the universe. For Aristotle, however, the universe was eternal; it always existed and was not created by God. His concept of God was that of a most perfect being
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toward which the universe was in some way directed. According to Aristotle, there is an order in nature, but it did not come from the mind of God. For Augustine and Thomas Aquinas, however, the reason why nature had the order that it did was because God, so to speak, had put it there. Because the universe was created after a divine plan, nature not only was intelligible but also existed for a purpose that was built into it. Some natural law theorists follow Thomas Aquinas on this, whereas others either follow Aristotle or abstain from judgments about the source of the order (telos) in nature. But can we conceive of an order in nature without an orderer? This depends on what we mean by order in nature. If it is taken in the sense of a plan, then this implies that it has an author. However, natural beings may simply develop in certain ways as if they were directed there by some plan—but there is no plan. This may just be our way of reading or speaking about nature. 14 Evolutionary theory also may present a challenge to natural law theory. If the way that things have come to be is the result of many chance variations, then how can this resulting form be other than arbitrary? Theists often interpret evolution itself as part of a divine plan. There is no necessary conflict between belief in God and evolution. Chance, then, would not mean without direction. Even a nontheist such as mid–nineteenth century American philosopher Chauncey Wright had an explanation of Darwin’s assertion that chance evolutionary variations accounted for the fact that some species were better suited to survive than others. Wright said that “chance” did not mean “uncaused”; it meant only that the causes were unknown to us.15
Natural Rights A second theory according to which moral requirements may be grounded in human nature is the theory of natural rights. John Locke provided a good example that Jefferson used in the Declaration of Independence, as noted at the beginning of this chapter. Certain things are essential for us if we are to function well as persons. Among these are life itself and then also liberty and the ability to pursue those things that bring happiness. These are said to be rights not because they are granted by some
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state but because of the fact that they are important for us as human beings or persons. They are thus moral rights first, though they may also need the enforcement power of the law. There is a long tradition of natural rights in Western philosophy. For example, we find a variant of the natural rights tradition in the writings of the first- and second-century A.D. Stoics. Their key moral principle was to “follow nature.” For them, this meant that we should follow reason rather than human emotion. They also believed that there were laws to which all people were subject no matter what their local customs or conventions. Early Roman jurists believed that a common element existed in the codes of various peoples: a jus gentium. For example, the jurist Grotius held that the moral law was determined by right reason. These views can be considered variations on natural law theory because of their reliance on human nature and human reason to ground a basic moral law that is common to all peoples. 16 Throughout the eighteenth century, political philosophers often referred to the laws of nature in discussions of natural rights. For example, Voltaire wrote that morality had a universal source. It was the “natural law . . . which nature teaches all men” what we should do. 17 The Declaration of Independence was influenced by the writings of jurists and philosophers who believed that a moral law was built into nature. Thus, in the first section it asserts that the colonists were called on “to assume among the powers of the earth, the separate and equal station, to which the laws of nature and of nature’s God entitle them.”18 Today various international codes of human rights, such as the United Nations’ Declaration of Human Rights and the Geneva Convention’s principles for the conduct of war, contain elements of a natural rights tradition. These attempt to specify rights that all people have simply as a virtue of their being human beings, regardless of their country of origin, race, or religion.
Evaluating Natural Rights Theory One problem for a natural rights theory is that not everyone agrees on what human nature requires or which human natural rights are central. In the
1948 U.N. Declaration of Human Rights, the list of rights includes welfare rights and rights to food, clothing, shelter, and basic security. Just what kinds of things can we validly claim as human rights? Freedom of speech? Freedom of assembly? Housing? Clean air? Friends? Work? Income? Many of these are listed in various documents that nations have signed that provide lists of human rights. However, more is needed than lists. A rationale for what is to be included in those lists of human rights is called for. This is also something that a natural rights theory should provide. Some contemporary philosophers argue that the basic rights that society ought to protect are not welfare rights such as rights to food, clothing, and shelter, but liberty rights such as the right not to be interfered with in our daily lives. 19 (See further discussion of negative and positive rights in Chapter 13, the section on socialism.) How are such differences to be settled? Moreover, women historically have not been given equal rights with men. In the United States, for example, they were not all granted the right to vote until 1920 on grounds that they were by nature not fully rational or that they were closer in nature to animals than males! The women of Kuwait only gained the right to vote in 2005. How is it possible that there could be such different views of what are our rights if morality is supposed to be knowable by natural human reason? A second challenge for a natural rights theory concerns what it must prove to justify its holdings. First, it must show that human nature as it is ought to be furthered and that certain things ought to be granted to us in order to further our nature. These things we then speak of as rights. Basic to this demonstration would be to show why human beings are so valuable that what is essential for their full function can be claimed as a right. For example, do human beings have a value higher than other beings and, if so, why? Is a reference to something beyond this world—a creator God, for example—necessary to give value to humans or is there something about their nature itself that is the reason why they have such a high value? Second, a natural rights theorist has the job of detailing just what things are essential for the good functioning of human nature.
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Finally, not all discussions of human rights have been of the sort described here. For example, Norman Daniels claims that the reason why people have a right to basic health care is because of the demands of justice; that is, justice demands that there be equal opportunity to life’s goods, and whether people have equal opportunity depends, among other things, on their health. 20 Another example is found in the writings of Walter Lippmann, a political commentator more than half a century ago. He held a rather utilitarian view that we ought to agree that there are certain rights because these provide the basis for a democratic society, and it is the society that works best. It is not that we can prove that such rights as freedom of speech or assembly exist, we simply accept them for pragmatic reasons because they provide the basis for democracy.21 The notion of rights can be and has been discussed in many different contexts. Among those treated in this book are issues of animal rights (Chapter 16), economic rights (Chapter 13), fetal and women’s rights (Chapter 9), equal rights and discrimination (Chapter 12), and war crimes and universal human rights (Chapter 18). In the reading selections here from Thomas Aquinas and John Locke, you will find discussions of the grounding of morality and rights in human nature.
NOTES 1. Thomas Jefferson, “The Declaration of Independence,” in Basic Writings of Thomas Jefferson, Philip S. Foner (Ed.) (New York: Wiley, 1944): 551. 2. John Locke, Two Treatises of Government (London, 1690), Peter Laslett (Ed.) (Cambridge: Cambridge University Press, 1960). 3. http://en.wikipedia.org/wiki/Guantanamo_Bay_ detention_camp. 4. This is the basic idea behind the theory of civil disobedience as outlined and practiced by Henry David Thoreau, Mahatma Gandhi, and Martin Luther King, Jr. When Thoreau was imprisoned for not paying taxes that he thought were used for unjust purposes, he wrote his famous essay, “Civil Disobedience.” In it he writes, “Must the citizen ever for a moment, or in the least degree,
5.
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7. 8. 9.
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11. 12. 13. 14. 15.
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resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right.” Henry David Thoreau, “Civil Disobedience,“ in Miscellanies (Boston: Houghton Mifflin, 1983): 136–137. W. T. Jones, A History of Western Philosophy: The Classical Mind, 2d ed. (New York: Harcourt, Brace, & World, 1969): 214–216. This was asserted by the neo-Platonist Porphyry (ca. A.D. 232). However, others believe that the work got its name because it was edited by Nicomachus. See Alasdair MacIntyre, After Virtue (Notre Dame, IN: Notre Dame University Press, 1984): 147. W. T. Jones, op. cit., p. 233. See the selection in this chapter from The Nicomachean Ethics. Thomas Aquinas, “Summa Theologica,” in Basic Writings of Saint Thomas Aquinas, Anton Pegis (Ed.) (New York: Random House, 1948). This is obviously an incomplete presentation of the moral philosophy of Thomas Aquinas. We should at least note that he was as much a theologian as a philosopher, if not more so. True and complete happiness, he believed, would be achieved only in knowledge or contemplation of God. Aristotle, Politics, Chap. V, VI. Thomas Hobbes, Leviathan, Michael Oakeshott (Ed.) (New York: Oxford University Press, 1962). David Hume, Treatise on Human Nature (London, 1739–1740). Such a view can be found in Kant’s work The Critique of Judgment. See Chauncey Wright, “Evolution by Natural Selection,” The North American Review (July 1872): 6–7. See Roscoe Pound, Jurisprudence (St. Paul, MN: West, 1959). Voltaire, Ouvres, XXV, 39; XI, 443. Thomas Jefferson, Declaration of Independence. On negative or liberty rights see, for example, the work of Robert Nozick, State, Anarchy and Utopia (New York: Basic Books, 1974). See further discussion on welfare and liberty rights in Chapter 13, “Economic Justice.” Norman Daniels, “Health-Care Needs and Distributive Justice,” Philosophy and Public Affairs, 10, 2 (Spring 1981): 146–179.
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21. The term pragmatic concerns what “works.” Thus, to accept something on pragmatic grounds means to accept it because it works for us in
Reading On Natural Law THOMAS AQUINAS Study Questions 1. What is the chief characteristic of first principles, both of demonstration and of practical reason? 2. What is the difference between something being self-evident in itself and self-evident to us? 3. What is the first principle of demonstration and on what is it founded? 4. What is the first thing that falls under the apprehension of practical reason? And thus what is its first principle on which all the principles of natural law are based? 5. How does one determine whether something is good or evil, according to Aquinas? Give some of his examples. 6. What is the natural function of the human as human? How is this related to natural law? To virtue? 7. What is the key difference in terms of certitude between principles of speculative and of practical reason? Is there a difference here between principles and conclusions? 8. Give Aquinas’s example of this difference related to restoring the belongings of someone. 9. What types of things prevent people from agreeing in their moral judgments about particulars? 10. What does Aquinas want to show by the examples of murder as opposed to punishment? 11. How does Aquinas believe that we should decide which laws are just? From Summa Theologiae, 1265–1272. Translated from the Latin by Edward MacKinnon.
some way. For Walter Lippmann’s views, see Essays in the Public Philosophy (Boston: Little, Brown, 1955).
QUESTION 94 Article 2, Whether Natural Law Contains Many Precepts or Only One In the human context, the precepts of natural law relate to activities in a way similar to first principles in demonstrations. But there are many indemonstrable first principles. Therefore there are many precepts of natural law. As was previously stated, precepts of natural law relate to practical reason just as the first principles of demonstration relate to speculative reason, both being self-evident. However, something is said to be self-evident in two ways: one intrinsically selfevident, the other evident to us. A particular proposition is said to be intrinsically self-evident when the predicate is implicit in the subject, although this proposition would not be self-evident to someone ignorant of the definition of the subject. For instance, this proposition “man is rational” is selfevident by its very nature since saying “human” entails saying “rational.” Nevertheless this proposition is not self-evident to one who does not know what a man is. . . . (Now) that which is primary in apprehension is being, the understanding of which is included in anything whatsoever that is apprehended. Accordingly, the first indemonstrable principle is that one cannot simultaneously affirm and deny something. This is founded in the understanding of being and nonbeing and in this principle all others are founded, as stated in Metaphysics IV. Just as being is the first thing that falls under simple apprehension, so also the good is the first thing that falls under the apprehension of practical reason which is ordered to action. Every agent acts for an end, which is understood as a good. Accordingly, the first principle of practical reason is the one based on the concept of the good: Good is what everything desires. This, accordingly, is the first principle of law: Good is to be done and evil avoided. All the other
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precepts of natural law are based on this. All c oncern what is to be done or avoided, because practical reason naturally apprehends what is the human good. Good has the nature of an end while evil has a contrary nature. Accordingly, every thing for which a man has a natural inclination is naturally apprehended as a good and consequently something to be pursued, while anything contrary to this is to be avoided as evil. Therefore the ordering of the precepts of natural law stems from the order of natural inclinations. In the first place, there is the inclination of man towards natural good, an inclination shared by all substances inasmuch as they naturally desire self-preservation. The consequence of this inclination is that whatever preserves human life and avoids obstacles is a matter of natural law. Secondly, there is in man a more specialized inclination following the natural bent he shares with other animals. Accordingly these things are said to pertain to natural law that “nature has taught to all animals,” such as the mating of male and female, education of children, and similar thi ngs. Thirdly, there is in man an inclination toward good based on reason, something proper only to man. Thus man has a natural inclination to know the truth about God, and that he should live in society. On this ground, those things that stem from this inclination are also a matter of natural law. Thus, man should overcome ignorance and should not offend fellow members of society, and similar considerations.
Article 3, Whether All Acts of Virtue Are Prescribed by Natural Law . . . All those things to which man is inclined by nature pertain to natural law. Everything naturally inclines to operations that are appropriate to its form, as fire toward heating. Since a rational soul is the proper form of humans the natural inclination of a man is to act according to reason. And this is acting virtuously. In this respect, all virtuous acts pertain to natural law. Each person’s reason naturally tells him to act virtuously. However, if we speak of virtuous acts in themselves, or according to their proper species, then not all virtuous ac ts are matters of natural law. For many things accord with virtue, though nature lacks an initial inclination. It
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is through rational inquisition that men come to know which things conduce to living well.
Article 4, Whether There Is One Natural Law for All As was said previously, those things towards which man is naturally inclined pertain to natural law. Among such things it is distinctively human for a man to act in accord with reason. Reason inclines us to proceed from the common to the particular (as shown in Physics I). In this regard there is a difference between speculative and practical reason. Speculative reason is concerned in the first instance with things that are necessary, or could not be otherwise. Thus truth is easily found in proper conclusions just as in common principles. But practical reason is concerned with contingent matters involving human activity. Therefore, if there is some necessity in common principles, there is increasing error the further we descend to particular conclusions. In speculative reason, there is the same degree of truth in principles and conclusions, although the truth of the conclusion may not be as well known to many as the principles are, for they are common conceptions. In activities, however, there is not the same degree of truth or practical rectitude, among all people concerning conclusions, but only concerning principles. Even those people who share the same rectitude concerning conclusions do not share the same knowledge. . . . With regard to the proper conclusions of practical reason, all do not share the same truth or rectitude. Even those that do share equal truth are not equally known. For everyone, it is right and true to act in accord with reason. From this principle follows a quasi-proper conclusion, that debts should be paid. This is true as a general rule. However, it may happen to be harmful in a particular case, and consequently unreasonable to give goods back, if for example someone is intending to attack the homeland. Thus, uncertainty increases the more we descend to particulars. Thus if it is claimed that goods are to be restored with certain precautions, or under certain conditions, then the more detailed the conditions are, the more uncertainty increases, even to the degree that it is not clear whether or not they should be restored.
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Accordingly, we claim that first principles of natural law are the same for all, but in rectitude and knowledge. However, the quasi conclusions from these principles are for the most part the same for all both in rectitude and knowledge, though in a few cases there can be a deficit both with respect to rectitude because of some particular impediments (just as things naturally generated and corrupted are deficient in a few cases because of obstacles) and there can also be a deficit in knowledge. The reason for this is that some people have their reason per verted by passion, which may be due to bad customs or to a defective natural disposition. . . .
the prohibition of murder is derived from the general principle that evil should not be done. Other things, however, have the form of a determination. Natural law requires punishment for the evildoer, but whether he receives this or that penalty is a particular determination of natural law. Both forms, accordingly, are found in human law. However, determinations of the first mode are not only contained in h uman law, but they also have force through natural law. The second mode, however, derive their force only from human law. . . .
Article 3 QUESTION 95 Article 2, Whether Every Law Fashioned by Humans Is Derived from Natural Law But it should be recognized that something can be deviant from natural law in two ways. The first is as a conclusion from principles; the other as a determination of some common generalities. The first mode is similar to the practice of the sciences, where conclusions are produced by deduction from principles. The second mode, however, is more like what occurs in the arts, where common forms are tailored to special cases. A carpenter, for example, must determine the common form of a home to be this or that particular shape. Therefore, some things are derived from the common principle of natural law in the form of conclusions. Thus
Reading Second Treatise of Civil Government JOHN LOCKE Selection from John Locke, Second Treatise on Civil Government (London, Routledge and Sons, 1887).
In every being that is for an end it is necessary that its form has a determinate proportionality to the end, as the form of a saw is geared towards cutting as is clear in Physics II. Anything that is ruled and measured should have a form proportioned to its ruler and measure. Now human law has both, because it is something ordered to an end; and it has a rule or measure regulated or measured by a higher measure, which is both divine law and the law of nature, as previously explained. The end of human law is the well- being of humans . . . accordingly, . . . the first condition of law posits three things: That it accords with religion, inasmuch as it is proportioned to divine law; that it fosters discipline, inasmuch as it is proportional to natural law; and that it advances well-being inasmuch as it is proportional to human needs.
Study Questions 1. What two things characterize human beings in their natural state, according to Locke? 2. On the second characteristic, why does Locke hold that human beings are equal? 3. Why is the natural state of human liberty not a state of license, according to Locke? What does he mean by that? 4. How does the “state of nature” provide a basis for a “law of nature,” according to Locke?
