- To a great extent, the approach that one takes to questions of ethics and the type of answers at which one arrives depends on the view one takes of human nature. Whether human rights are actually protected by specific legislation or not, the moral demand that a given rights claim ought to be respected depends on recognizing a fundamental dignity in every human being without respect to that person’s beliefs or stage of development. Also at issue here is the question of whether human beings are different in kind or just different in degree of complexity in comparison with other animal species, especially the higher primates, because only a genuine difference in kind warrants a difference in the way we treat them.
In his introductory lecture on Natural Law (one of the great courses here), Fr. Koterski considers a number of famous cases (Antigone, the Nuremberg trials, and Martin Luther King). He recall the long tradition of invoking an unwritten but universal law that stands higher than the written laws and customs of particular communities. In each example, we find an appeal by aggrieved parties to the ideal of justice that laws ought to respect and defend, an appeal that claims the support of a standard that is objective and impartial. Such experiences ground the long and admittedly checkered history of the idea of natural law. The lecture then explains what is required for a philosophical approach to this question and outlines topics to be covered in the course. The lecture also simply answers the question, “Does natural law exist?”
A study of natural law ethics, in this course, intends to reflect upon a very ancient and venerable tradition in the consideration of morality. It is a study that involves the consideration of ethics as it’s been known since the time of the Greeks, through the Middle Ages and into the modern period, and to our own day. It’s a study of one important strand of ethics that goes by various names. I’ll be entitling it “natural law.”
But you also see it under the term “higher law.” It is an unwritten, but nonetheless superior, law which stands over any piece of jurisprudence that any particular community, any kind of custom, that any human culture has ever devised and asks about the justice of those customs and the justice of those laws. It’s called a higher law. Sometimes it is referred to under the tradition of natural rights.
Sometimes one finds it being talked about in terms of human dignity. And these are just a few of its names. In order to try to make clear what this tradition is, right here at the start, what I would like to do is to begin with three important cases that bring out this notion of a higher law or a natural law. And then reflect for just a little bit on the importance of considering our topic philosophically. And then finally I’ll say a few words about the general nature of this whole course and the parts that the course will take. But let me begin with calling upon an ancient story from Greece in the classical period.
A wonderful play by Sophocles is called Antigone. You may well know that story, it’s the story of the town of Thebes which has been rent by a civil war on which opposite sides two brothers have fought, Polynices and Eteocles. Both have been killed in the course of the war. They are brothers to the heroine of the play. Their sister’s name is Antigone and she gives the play its name.
She finds herself in that predicament of having family loyalties to both brothers. But the king has decided that only the brother who supported the side that won — that supported the administration of the city — should be buried and buried with honor; whereas Antigone’s other brother will be left to rot in the fields as a kind of dishonor precisely in order to discourage rebels from raising arms against their city.
It’s an understandable position that Creon would have to maintain order and will stand for the maintenance of that system of justice which he is charged with considering and charged with maintaining in the course of his administration. But Antigone feels a very strong loyalty to her brothers and she cannot imagine leaving her brother to rot. She finds that her obligation is an obligation that takes her counter to the civil law — to the law that Creon has enacted which forbade her brother to be buried — but which calls upon a higher law, calls upon a law which is invoked by Zeus.
Let me read a short portion of the relevant text. Creon is speaking: “You, tell me not at length but in a word. You knew the order not to do this thing.” And Antigone says: “I knew, of course I knew. The word was plain.” Creon then says: “And still you dared to overstep these laws.” Antigone: “For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind. Nor did I think your orders were so strong that you, a mortal man, could over-run the gods’ unwritten and unfailing laws. Not now, nor yesterday’s, they always live, and no one knows their origin in time.”
Now one finds in that short passage of a very interesting play, all the important themes of the natural law, which will eventually be articulated by the philosophers in the course of history. We start in the first thing that she says, with an admission that this has been a voluntary action on her part. She has gone and buried her brother — thrown dust upon the corpse — so that the soul will now rest in peace. And she has done so knowing that this transgressed the law, which the king had made.
Hence, we find that scenario which is so common in the history of natural law, that a law that is higher and unwritten is being invoked against the law that was laid down by the authority in the community. Creon is the authority in the community. And there’s every sense that he is a legitimate authority, that he bears his power correctly.
And in fact that he has given a command here — namely that the corpse of a traitor should not be buried — given a command, which is quite reasonable. A command which is clear, a directive which requires that its citizens do something which makes good sense for the common good of the community.
Her appeal is to a higher source. It’s interesting how she does it. Again, to read just the relevant line. “For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind.”
She is invoking a higher source. She calls this higher source Zeus, but she also calls it Justice. And one has a sense that this is not just an appeal to some specific command that the Greek god Zeus ever gave. We could look in the various stories of the mythology and we will not find a particular command to that effect, but rather this is a very philosophical kind of Zeus. This is a sense of using the word, the name Zeus, and linking it with the very notion of justice, as Justice personified. That this is what Justice requires that I do for my brother.
In fact, later in the play, in a passage that is somewhat complicated (the scholars debate over whether or not it is the original rendering or a later change that was made in the manuscript) she even makes the case that it is not simply because it is her brother lying there, but that anyone who died should be given proper rights of burial. And if that second reading of the text were accurate, this would invoke that very strong natural law theme of the universality of natural law. That it is something that applies to every human being, regardless of our particular kinship relations with them.
It also assents in Antigone’s speech that this is a higher law because she contrasts it very strongly and immediately with the law that Creon has laid down. She does not dispute his authority in general; he is, as the leader of the city, perfectly justified in making laws that give directives that we sometimes dislike.
But rather, what she finds is that the particular directive he has given violates justice. That it transgresses this higher law. Hence she invokes a higher law against a law laid down by a human ruler and urges that morality requires her to do what she did, even if it will cost her. And indeed it does cost her life.
As the play goes on, she is shut up in a cave and Creon leaves her to starve to death. There is an interesting romantic element because she has been a fiancée of Creon’s own son. He rushes to find her, but too late. It is one of the great tragedies of that period. And it begins some of that reflection upon natural law that the Greek period knew.
Let me turn to a second great story because it also gives an important sense of the way in which natural law has been present, not just in the period of Antiquity, but is present in our own modern jurisprudence. One of the interesting factors I think of this whole course will be the tremendous recurrence of the natural law. That it comes again and again in every age.
The incident I mean to mention for the second story are the Nuremberg trials. That in the history of our own century just past, one found a scenario where natural law, not under that name but under one of its synonyms, had to be invoked in order to solve a problem in modern jurisprudence. Namely the fact of a government, the Nazi government, which did actions and laid down as policies, which in fact enacted legislation, which after the war was prosecuted in the city of Nuremberg.
The judges of the trials of the Nuremberg found themselves, at the very start of the proceedings, with a very difficult legal problem. Namely, that even though they were British, or American, or French, or Russian jurists that they could not try German officers, or members of the German government under British, American, French, or Russian laws because what had been done had been done not in any of their jurisdictions.
And yet here they were set up as the trial court to examine certain of the deeds of Nazi Germany. They found that they could not use German law; because although the people who were now being accused of these crimes were indeed German citizens and had done their deeds on German soil, they had done them in perfect legality, according to the German law. For part of the story of the Nazi period is the care with which the Nazi movement made sure to bring the deeds that it intended to do under legal jurisdiction by enacting appropriate legislation.
So you couldn’t use the law of the victors and you couldn’t use the law of the vanquished. What could you use? What the members of that court decided to do was to prosecute the people who were brought before its tribunal under the term “crimes against humanity.” And there we see another one of those synonyms for natural law. I suspect they did not use the term natural law because natural law has a checkered history. We will in fact see in the course of these lectures when we turn to some of the historical instances of natural law, that natural law theory has sometimes been used, and I dare say abused, for ideological purposes.
In fact, a part of the Nazi period was an attempt to justify the repudiation of tribes, of races other than the Aryan race, under natural grounds suggesting that there was a superiority to the Aryan race by nature. And hence you did not want to now try them under natural law or at least to be using that term if it in any way suggested an acceptance of what the Nazi’s had done. But the natural law idea is never confined to that particular terminology. Sometimes it will be human dignity, sometimes it will be natural rights, and sometimes it will be human rights, although in most of its history it has been called natural law.
Here these justices required a term that would speak to the consciences of the world about what it was they were doing. They settled upon crimes against humanity for the sake of the trials that they needed to conduct. Post-war Germany also felt the importance of what the Nuremberg trials had done; in the effort to re-establish a system of justice and good jurisprudence in Germany after the war, one finds German basic law and the jurisprudential tradition within Germany making use of this natural law idea.
Let me again read a short portion that comes from some of the jurisprudence that was elicited after the war. “These laws of confiscation” (this is the passage that deals with the return of the property that had been taken unfairly during the war). “These laws of confiscation, though clothed in the formal rules. of a law are in extremely grave violation of the supra-positive principle of equality before the law as well as of the supra-positive guarantee of any legal order and must remain inviolable. These provisions were and are by reason of their unjust content and their violation of the basic demands of any legal order mill and void; this law could not, even at and during the time of the Nazi regime, produce any legitimate legal effect.”
That passage from 1955 is a very interesting instance of natural law reasoning. It suggests the importance of a law that is somehow higher than the laws which were used during the Nazi period and whose validity and legality were now being commented upon. This reference to a justice that stands higher than the laws that were actually enforced makes that same contrast between what the formal rules of law were and what the justice that any code of law must embody always has to insist upon.
Here the insistence upon a just order and a just content manifests that same sense of a moral tradition. And it brings up this need for judicial review. Judicial review is one of the terms that we will be invoking again and again in the course of our lecture and it refers to the employment by the court of a standard by which to judge the legality and the justice of legislation. Our own American Supreme Court has a doctorate and judicial review which operates in a somewhat similar manner; we’ll have a chance to examine later in one of the lectures about the extent to which it uses a natural law standard.
Here there is a very interesting bit of terminology that I want to call your attention to, it talks about “supra-positive principle of equality” and a “supra-positive guarantee of any legal order” and that is terminology with which we must be familiar right from beginning of this course. Positive here is not being used in the sense of contrast between positive and negative, rather positive is being used in the technical legal sense of a law which has been posited, or a law which has been laid down by human authority.
In this sense, a constitution, as well as administrative laws, as well as the legislation that is passed by a particular congress or particular legislator, all of these, are positive law because they have been laid down by a human authority. And what the German court is referring to in this 1955 opinion is the notion of a supra-positive standard. That is some principle, which stands above anything that has been laid down by human authority.
A suggestion that whatever the human authority lays down, or posits for the sake of procedure or for the sake of some substantive principle of law, there are higher principles yet. Principles which are above anything that has ever been positive. Principles that are eternally true, true because of what we are, our human nature. True perhaps because God laid them down.
But from whatever source they come, they are true and they are supra-positive or they stand above the legislation that comes from the human authority. In this sense, the German court is invoking the natural law tradition without having to call the thing by that particular name.
Let me now turn to a third example that comes from our own American history and that cuts very deep to our hearts I think. It is the case of civil rights and the enormous progress that has been made in the civil rights movement, especially in the course of the Twentieth Century. I’d like to refer to the case of Martin Luther King in particular. In his letter from the Birmingham jail, a very famous document, he also makes use of this natural law tradition in order to protest against racial prejudice. And here we see a third important scenario because we have not just the actual state of existing laws against which he was protesting, but he is also protesting against the custom, which was of a very long standing here on these shores.
And so in the course of making his analysis, he is invoking the natural law not just against a particular decree, as in the case of Creon, or system of law, as in the case of the Nazis, but managing to use natural law to examine human custom as well. Hence, I think this is a very important third representative case.
Let me quote from Martin Luther King. He says:
“A just law is a 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. To put it in the terms of Saint Thomas Aquinas: `An unjust law is a human law that is not rooted in eternal law and natural law.”
Now, in that passage we find Martin Luther King invoking Thomas Aquinas. And Thomas Aquinas is a figure whom we will see again and again in the course of these lectures. In the whole history of philosophy, he is probably the most famous proponent of natural law. He does it in a rather brief compass within a treatise on theology that he wrote. But in the course of doing so he manages to state with great precision what these principles are and to put the thing in a systematic compass.
Martin Luther King, knowing of this tradition, invokes him as an authority. But does so largely to emphasize to us that one can do this from the point of view of morality considered in secular society. The kind of instance that Martin Luther King must consider because of the jurisprudence in this country. Or it may be done in a religious tradition, not just the traditions of ancient Greece where we had that reference to Zeus in the first passage that I read, but now in reference to the God that Christianity accepts.
The God of Jesus Christ which Thomas Aquinas had reflected upon in such great detail and which Martin Luther King believes in. And Martin Luther King, invoking the tradition in this way, urges us to say one can do this philosophically as well as can do it theologically. I’ll be trying to make use of those themes in the course of our lectures, trying to talk about its theological roots as well as its strictly philosophical roots.
Now mindful of this recent history of ours, Martin Luther King, it’s good to reflect that Martin Luther King didn’t invent the idea.