Among the various versions of natural law theory in circulation today, one in particular has come under considerable (and justified) attack. This is the version which suggests that we can figure out how to behave simply by observing nature around us and by figuring out how nature dictates we should behave. A religious dimension to this version of the theory may add that God has written into nature a moral code that we can tap into by thinking about the nature of the world around us.
This 'extrinsic' view of natural law has crept into natural law debates since at least the 16th century. And it is this version of natural law which Bentham and others have since railed against.
But it is not the “authentic” version of natural law, if by that we understand the version which developed from the time of Aristotle and found its zenith in the writings of St Thomas Aquinas. That version—what we might call the “reason-based” variety of natural law is the version from which we have derived a coherent understanding of human rights. The extrinsic version is, quite simply, not up to the task of explaining natural, human rights.
While the understanding of the “natural law” suggests that human reason can figure out right and wrong by examining “nature”, the Thomistic version of natural law is a description of the role and nature of human reason itself.
Reason is, by nature, an organizing principle which marshals our experiences of the world about us. It both finds and assigns patterns upon the stuff of experience. It seeks to maximize happiness and pleasure, and to minimize and eradicate pain. Reason is economical: it seeks the best and most efficient ways of doing things; sometimes it sacrifices the qualitative for the quantitative, but even in these situations, it is always seeking what is “best”.
Reason does not “read into” nature in order to find “laws” of behavior. Rather, it seeks its own well-being in the context of day-to-day living. The realty about me is not a book to be read; it is, rather, the platform upon which I seek to establish my own being in happiness.
Reason, however, is also limited. There is no way that it can figure out everything on its own. I rely on teachers and others to augment my understanding of the world. I consult books and YouTube videos to better understand my place in the world. The whole time, my reason is trying to figure out: “what is best for me?”
This much, at least, is uncontroversial. That reason seeks to promote the well-being of the individual in the context of day-to-day living is intuitive and simple: so too is the (authentic) understanding of natural law which is based entirely upon this first principle of reason.
The second step may be more controversial, but it is no less intuitively coherent than the first. This second step recognizes, first of all, that human reason is both limited and prone to error. But, unlike the skeptics, it does not lose confidence in the ability of reason to make sense of even the most challenging of problems that we face. Reason seeks a way, a correct way, of dealing with everything life presents.
But reason is not confined to nothing more than trial-and-error in formulating its principles of moral action: it can refer to the “divine law” for assistance: the Ten Commandments.
This might seem like a bit of a leap—to move from the first principle to the need for a divine law to guide reason. But the move is less of a leap, and more of a conclusion. Nor is the reliance on this conclusion a circular argument, since we can trace our steps back to our experience of the first principle to see how the whole theory provides a coherent account of human action. In other words, we begin with a hypothesis: the human person needs a coherent and stable account of what reason itself is all about.
First, we need to rid ourselves of another false narrative: the Ten Commandments represent nothing more than a faith-based to-do list for every human action.
The Ten Commandments are not such a list. According to our hypothesis, the Ten Commandments are rather a description of a certain kind of human person, of a particular kind of character. That person, or character, is a being-in-relation with others. At this stage of the hypothesis, we do not even need to introduce the theological claim that the Decalogue is a “participation in the eternal law”, or mind of God. If the Ten Commandments are rational, they will be so regardless of our theological competence. Do the Ten Commandments represent an account of the human person which coheres with my experience of life?
In other words, do I find that living virtuously—according to the virtue theory of the Commandments—my experience of self is richer and fuller? Do I find that the Commandments describe a kind of person that, when I try to realize this ideal, coheres with my experience of life? Or do the commandments cut me off from my fellow man, and render me impotent in the face of my desires and aspirations?
The experience of a great many people, and of western civilization in general, is that the Ten Commandments represent both a coherent and workable account of human persons and society. It is for this reason that we have based, in the tradition of the west, practically our entire legal, cultural and political identity on the foundation of the Ten Commandments.
In summary, the authentic version of natural law relies on these two assumptions: first, that reason seeks to guide the person into the way of happiness, and out of harm’s way. Secondly, it is clear that reason, unaided, is not very good at carrying out this task consistently, and so it requires some stable reference that describes the
ideal rational person. The Ten Commandments provide such a stable reference and experience confirms that this reference is reliable, flexible and consistent. We can arrive at these conclusions long before we get to a discussion about whether or not God exists; and so there is no reason to suppose that the successes of our western civilization need to be overturned on the basis of nothing more than our religious insecurity.