September 11, 2013
Diogenes of Synope was a funny Greek philosopher who used to wander the streets with a lantern in the daylight “in search of an honest man.” He was something of a hippie, as he spurned riches, reputation, and even hygiene. He also questioned patriotism and preferred to call himself a citizen of the world.
As I grow older, I find myself thinking more and more like Diogenes, at least insofar as I believe I could carry on a similar search for an honest man and never find one. Honesty is more than telling the truth. Honesty is the willingness to call a spade a spade, even when the full truth makes one look weak.
Lawyers might have a problem with this because they are paid to put the client’s “best case” before the court. They are paid to keep some bad information secret through the attorney-client privilege, to ignore inconvenient facts, and to make the other side’s “best case” look preposterous, even if it is the more likely truth. No doubt Diogenes would have a field day with lawyers.
Of course, lawyers do not necessarily handle the truth in such ways when clients, judges, and juries are not around. We lawyers have also usually been exposed at one point or another to the limitations of our knowledge. As young lawyers researching a legal question, we learn that even though we might discover a law on the books that apparently resolves our legal question, there might be another law out there stating that the just-discovered statute does not apply in certain situations. Since it is practically impossible to read every law out there to prove a negative (especially on the client’s dime), the lawyer must act with some degree of faith in his/her mentors, practice guide books, and even gut instinct. That degree of uncertainty should keep the lawyer’s attitude in check.
When dealing with coworkers and clients, however, lawyers must appear confident in spite of the fact that they might be wrong (even embarrassingly so). I can’t help but wonder if this bravado comes from society or if lawyers helped to contribute this approach to society, but it seems that virtually everyone in public life wants to focus on his or her argument, ignore or suppress all information counter to that argument, discredit all those who might question that argument, and reframe any opponent’s argument in a weaker way so that it is easier to overcome. This is probably not the best way for a curious listener to arrive at the truth—listening to multiple myopic, self-serving viewpoints and trying to sort between them.
The thesis/antithesis model of reasoning, where one honestly and readily admits the most powerful arguments opposing one’s argument during discourse, is far superior for everyone’s sake if one is to hope that the truth triumphs even to one’s own detriment. Sadly, we are usually not honest enough to hope that the truth prevails even though it crushes us. We could join Diogenes’ search, knowing full well that no one is brave enough or righteous enough to always admit the truth and expose his own frailty.
September 17, 2009
To follow up on an earlier brief post, I want to give a more detailed accounting of the meaning of Natural Law from Thomas Aquinas. I’ll pick a couple of his comments in his Treatise on Law (a subpart of his Summa Theologica).
1. On the substance of the Natural Law itself, Aquinas states:
[T]he first principle of practical reason is one founded on the notion of good, viz. that “good is that which all things seek after.” Hence this is the first precept of law, that “good is to be done and pursued, and evil is to be avoided.” All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.
Since, however, good has the nature of an end, and evil, the nature of a contrary, hence it is that all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Wherefore according to the order of natural inclinations, is the order of the precepts of the natural law. Because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law, “which nature has taught to all animals” [*Pandect. Just. I, tit. i], such as sexual intercourse, education of offspring and so forth. Thirdly, there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.
2. On the extent to which Natural Law is present in all people, true for all people, and known by all people, Aquinas states:
As stated above (Articles ,3), to the natural law belongs those things to which a man is inclined naturally: and among these it is proper to man to be inclined to act according to reason. Now the process of reason is from the common to the proper, as stated in Phys. i. The speculative reason, however, is differently situated in this matter, from the practical reason. For, since the speculative reason is busied chiefly with the necessary things, which cannot be otherwise than they are, its proper conclusions, like the universal principles, contain the truth without fail. The practical reason, on the other hand, is busied with contingent matters, about which human actions are concerned: and consequently, although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects. Accordingly then in speculative matters truth is the same in all men, both as to principles and as to conclusions: although the truth is not known to all as regards the conclusions, but only as regards the principles which are called common notions. But in matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles: and where there is the same rectitude in matters of detail, it is not equally known to all.
It is therefore evident that, as regards the general principles whether of speculative or of practical reason, truth or rectitude is the same for all, and is equally known by all. As to the proper conclusions of the speculative reason, the truth is the same for all, but is not equally known to all: thus it is true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all. But as to the proper conclusions of the practical reason, neither is the truth or rectitude the same for all, nor, where it is the same, is it equally known by all. Thus it is right and true for all to act according to reason: and from this principle it follows as a proper conclusion, that goods entrusted to another should be restored to their owner. Now this is true for the majority of cases: but it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance, if they are claimed for the purpose of fighting against one’s country. And this principle will be found to fail the more, according as we descend further into detail, e.g. if one were to say that goods held in trust should be restored with such and such a guarantee, or in such and such a way; because the greater the number of conditions added, the greater the number of ways in which the principle may fail, so that it be not right to restore or not to restore.
Consequently we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles (just as natures subject to generation and corruption fail in some few cases on account of some obstacle), and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature; thus formerly, theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates (De Bello Gall. vi).
3. Aquinas further explains how people who know the Natural Law can deny the Natural Law and end up affirming things that are obviously wrong:
As stated above (Articles ,5), there belong to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men’s hearts. But it is blotted out in the case of a particular action, in so far as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (Question , Article ). But as to the other, i.e. the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.
4. With respect to human laws, Aquinas states that all human laws must conform to the Natural Law:
As Augustine says (De Lib. Arb. i, 5) “that which is not just seems to be no law at all”: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (Question , Article , ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.
But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape. Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that “one must not kill” may be derived as a conclusion from the principle that “one should do harm to no man”: while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.
Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law.
All of this is fairly easy to summarize: There is an objective code of moral laws (the “natural law”) that actually exists. The first rules are “do good, avoid evil,” and other obvious rules immediately flow out of or coincide with that (do not harm people, etc.). These laws are not a matter of opinion and we humans did not decide to make them up, these laws are what they are and always have been. Everyone knows these obvious laws, but honest men can disagree about the applications of these laws in certain complicated circumstances. People who violate these laws can become self-deluded and then think they do not know the laws that they know. Laws that humans make up through government should conform to these laws.
August 24, 2009
With a blog called “The Natural Lawyer,” I suppose it’s about time I explain what I mean by the concept of “Natural Law.”
Professor J. Budziszewski at Texas University is one of the prominent scholars on the subject. I will briefly borrow from an interview he did for the Acton Institute; it’s useful here because it’s in Q&A format:
What is the natural law?
Budziszewski: Our subject is called natural law because it has the qualities of all law. Law has rightly been defined as an ordinance of reason, for the common good, made by the one who has care of the community, and promulgated. Consider the natural law against murder. It is not an arbitrary whim, but a rule that the mind can grasp as right. It serves not some special interest, but the universal good. Its author has care of the universe, for he (God) created it. And it is not a secret rule, for God has so arranged his creation that every rational being knows about it.
Our subject is called natural law because it is built into the design of human nature and woven into the fabric of the normal human mind. Another reason for calling it natural is that we rightly take it to be about what really is—a rule like the prohibition of murder reflects not a mere illusion or projection, but genuine knowledge. It expresses the actual moral character of a certain kind of act.
R&L: Why is the natural law something that “we can’t not know?”
Budziszewski: Mainly because we have been endowed by God with conscience. I am referring to “deep conscience,” which used to be called synderesis—the interior witness to the foundational principles of morality. We must distinguish it from “surface conscience,” which used to be called conscientia—what we derive from the foundational principles, whether correctly or incorrectly, whether by means honest or dishonest. Deep conscience can be suppressed and denied, but it can never be erased. Surface conscience, unfortunately, can be erased and distorted in numerous ways—one of several reasons why moral education and discipline remain necessary.
In fact there are at least four ways in which we know the natural law. Deep conscience, the First Witness, is the one primarily responsible for “what we can’t not know.” The others concern “what we can’t help learning.” The Second Witness is our recognition of the designedness of things in general, which not only draws our attention to the Designer, but also assures us that the other witnesses are not meaning ful. The Third Witness is the particulars of our own design—for example, the interdependence and complementarity of the sexes. The Fourth Witness is the natural consequences of our behavior. All four work together.
There is obviously a lot more to Natural Law Theory; this summary just provides the starting points. Professor Budziszewski has also written a fascinating article on the consequences of denying conscience, both societally and individually.
I also wrote another entry describing the basics of Natural Law Theory here.
February 22, 2009
Because I am a voter for Proposition 8 (the California ballot measure to restrict marriage to heterosexual monogamous relationships), Sean Penn apparently wishes shame on me and the majority of other California voters, as he said in his best actor Oscar acceptance speech for his role as a gay activist in the movie Milk (I don’t have a video of that speech, but here he is wishing shame on blacks and Mormons for their role in Proposition 8). However, like every other anti-Proposition 8 activist, he didn’t give me a coherent reason to feel shame.
It’s one thing to throw around a word like “shame”, or similar pejoratives like “hate”, “homophobic”, “discriminatory”, or “intolerant”, but it’s another to back those words up with an argument, including a reasonable, respectful acknowledgement of an opponent’s most intelligent reasons for disagreement. I’d love to see the anti-Prop 8 crowd attempt a defense for their beliefs in the disputational method of Thomas Aquinas (which involves posing a question, then giving the opponents’ answers in the best possible light, and then answering those most powerful objections).
I would especially like to see someone, instead of arguing against the Proposition 8 movement, argue in favor of homosexual marriage in the abstract. How is recognition of homosexual marriage good for society? How does it benefit the society is such a sufficient manner that it’s worth privileging that relationship on a governmental level?
This is not to say that Sean Penn had the time to set forth such an argument in his Oscar speech; I’d just like to see these arguments, and a recognition of the strength of the opponent’s arguments, addressed somewhere in the popular media, without using words more fitting for a soundbite than for an intelligent discussion. Of course, given the nature of his comments at the Oscars, I doubt Penn is up to such a challenge.
[Personal note: Slumdog Millionaire was outstanding, and very deserving of its many awards.]