In recent years, there has been a great revival of interest in natural law thinking, one that has occurred across a range of disciplines and perspectives—from the philosophical and theological to the most contemporary debates in the area of legal and political philosophy. Much of this recent work is traced to the thought of St. Thomas Aquinas. To explore and evaluate the current revival, this volume brings together many of the foremost scholars on natural law. They examine the relation between Thomistic natural law and the larger philosophical and theological tradition. Furthermore, they assess the contemporary relevance of St. Thomas's natural law doctrine to current legal and political philosophy.

The book contains an extensive introduction to the topic, followed by four sections that treat various aspects of natural law thinking. The first section examines some of the philosophical foundations of natural law, especially the understanding of nature it presupposes. The second section is devoted to the theological context in which St. Thomas's natural law doctrine is situated. The essays in the third section discuss the new natural law theory espoused by Germain Grisez and John Finnis and the hotly debated question as to whether their theory is genuinely Thomistic. The final section explores several contemporary legal and political issues in light of St. Thomas's natural law thinking.

John Goyette is a Tutor at Thomas Aquinas College. Mark S. Latkovic is Professor of Moral and Systematic Theology at Sacred Heart Major Seminary in Detroit. Richard S. Myers is Professor of Law at Ave Maria School of Law.

In addition to the editors, the contributors are:

Benedict M. Ashley, O.P., Aquinas Institute of Theology

Romanus Cessario, O.P., St. John's Seminary

Robert Fastiggi, Sacred Heart Major Seminary

Robert P. George, Princeton University

Russell Hittinger, University of Tulsa

Steven A. Long, University of St. Thomas

William Mathie, Brock University

William E. May, John Paul II Institute for Studies on Marriage and Family

Ralph McInerny, University of Notre Dame

Earl Muller, S.J., Sacred Heart Major Seminary

David Novak, University of Toronto

Janet E. Smith, Sacred Heart Major Seminary

Christopher Wolfe, Marquette University

Martin D. Yaffe, University of North Texas

PRAISE FOR THE BOOK:

"[A] fine collection of papers"—James F. Keenan, S.J., Theological Studies

ST. THOMAS AQUINAS AND THE NATURAL LAW TRADITION

Contemporary Perspectives

The Catholic University of America Press

Copyright © 2004 The Catholic University of America Press
All right reserved.
ISBN: 978-0-8132-1399-6

Contents

Acknowledgments.................................................................................................................................viiIntroduction....................................................................................................................................ix1. Benedict M. Ashley, O.P., The Anthropological Foundations of the Natural Law: A Thomistic Engagement with Modern Science.....................32. Ralph McInerny, Thomistic Natural Law and Aristotelian Philosophy............................................................................253. David Novak, Maimonides and Aquinas on Natural Law...........................................................................................434. Romanus Cessario, O.P., Why Aquinas Locates Natural Law within the Sacra Doctrina............................................................795. William E. May, Contemporary Perspectives on Thomistic Natural Law...........................................................................1136. Steven A. Long, Natural Law or Autonomous Practical Reason: Problems for the New Natural Law Theory..........................................1657. Christopher Wolfe, Thomistic Natural Law and the American Natural Law Tradition..............................................................1978. Robert P. George, Kelsen and Aquinas on the Natural Law Doctrine.............................................................................2379. Russell Hittinger, Thomas Aquinas on Natural Law and the Competence to Judge.................................................................261Contributors....................................................................................................................................285Works Cited.....................................................................................................................................295Index...........................................................................................................................................309

Chapter One

THE ANTHROPOLOGICAL FOUNDATIONS OF THE NATURAL LAW

A Thomistic Engagement with Modern Science

Benedict M. Ashley, O.P.

The nature-nurture debate goes on acrimoniously today among experts in different fields. Thus E.O. Wilson, the sociobiologist, tries to explain human behavior by evolutionary genetics, while another expert, Richard C. Lewontin, denounces sociobiology as a pseudoscience. The debate usually ends with the banal agreement that nature and nurture "interact" in such a complex way that no workable criteria can be found to determine their respective contributions to human behavior. This agreement, however, does not put an end to the controversy. Why this impasse? The term "nature" is inescapable in science since by "science" we mean natural science not the sciences of pure mathematics, ethics, theology, and so on. We also speak of natural laws and we distinguish artificial objects or artifacts made by humans from natural objects.

Moreover, reliable criteria are used by scientists to distinguish whether an observed phenomenon can or cannot be explained by natural law. Thus scientists measure Newton's natural law of gravitation by observing the mutual attraction of massive bodies. In practice this is quite difficult because gravity is a very weak force and the observations can be easily disturbed by chance influences. Yet no one doubts that it is possible with proper ingenuity to devise methods that will determine gravitational force to a high degree of accuracy. Thus all of scientific knowledge depends on observations, sometimes requiring elaborate techniques, by which "natural" events are distinguished from those that are by chance or due to artificial human intervention. Thus "nature" is that uniform or regular behavior that things are observed to exhibit when isolated from the interventions of chance or deliberate human design.

If we understand the term "nature" as does physics, there is, in principle, no difficulty in separating what is natural in human behavior from what is not. All that is necessary is to observe human behavior and then leave out all features of that behavior that are not universal, regular, and uniform. When this is attempted, of course, it becomes obvious that human behavior is so variable that much of it cannot be considered "natural" and therefore has to be ascribed to chance or artifice. But there is a verifiable residue of features common to all human beings. If there were not, it would be meaningless to speak of the species Homo sapiens.

Nor does the vast number of exceptions that can be cited to any such generalizations about human nature undermine their scientific validity. Even the law of gravitation appears to have many exceptions—for example, a leaf in the wind or a balloon rises not falls. But when we find an exception we look for some element of chance, for example, the current of air that strikes the leaf, or the human artifice that made the balloon and filled it with helium, that accounts for these exceptions; we do not abandon the law of falling bodies. Thus it would seem that the nature-nurture controversy is solvable in principle if not always in practice. The more and more precise observations we make of human behavior, the clearer and more certain it will become what is human nature as distinct from the results of "nurture" or, to use another term, "culture" and chance.

But how are to we to distinguish between "culture" and "chance"? The reality of "chance" was rejected by the deterministic science of the nineteenth century. It believed Laplace's claim that if he knew the exact condition of the universe at a given moment he could infallibly predict its whole future. Today the quantum and chaos theories have made that mechanist claim absurd. The natural laws of quantum physics do not predict the exact future of a material entity but only provide a range of probabilities as to its behavior. Such laws give an appearance of determinism that increases with the average behavior of the entities involved, but it never rules out highly improbable events. Chaos theory states that very small variations in the initial conditions of natural processes, perhaps even ones so small as to be undetectable, can make a huge difference in the ultimate outcome of the process. It also reveals that what at first appear to be purely random processes, that is, ones determined by chance, when sufficiently repeated converge on certain definite results that manifest previously hidden natural determinisms. For example, the swing of a pendulum is actually quite random, yet if sustained for many swings it averages out sufficiently that it can serve as a regular measure of time and thus manifests Newton's law of gravity.

Hence chance cannot be eliminated from our explanations of what we observe in the natural world but is implied by the very fact of the reality of natural laws. Nature and chance are distinguishable but inextricably linked together. Thus Stephen Jay Gould can say that Darwinian biological evolution, the natural process that today is taken as the foundation of all biological science, is largely a matter of chance. We can reconstruct the history of the emergence of a species using various natural laws, but we cannot eliminate the element of chance. The reality of chance does...