Published online by Cambridge University Press: 23 January 2015
We describe the Catholic natural law tradition by examining its origins in the medieval penitentials, the papal decretals, the writings of Thomas Aquinas, and seventeenth century casuistry. Catholic natural law emerges as a flexible ethic that conceives of human nature as rational and as oriented to certain basic goods that ought to be pursued and whose pursuit is made possible by the virtues. We then identify four approaches to natural law that have evolved within the United States during the twentieth century, including the traditionalist, proportionalist, right reason, and historicist approaches. The normative implications of these approaches are discussed in relation to ethical issues in the tobacco industry, ITT under Geneen, the marketing of pharmaceuticals, affirmative action, and bribery. It is argued that Alasdair MacIntyre is correct in claiming that the natural law tradition is superior to the liberal ethics of modern deontology and utilitarianism.
1 John A. Gallagher, Time Past, Time Future: An Historical Study of Catholic Moral Theology, (Mahwah, N.J.: Paulist Press, 1990); see also John Mahoney, S.J., The Making of Moral Theology, (New York: Oxford Press, 1987).
2 For the Catholic natural law tradition “natural law” refers generally to an ethic that is based on human nature as rational and more particularly to that ethic that was first fully articulated in the work of Saint Thomas Aquinas. This natural law was the ethic taught in the numerous Catholic colleges founded in the United States in the wake of the immigration of Catholics from Europe during the eighteenth and nineteenth centuries; its continuing influence on Catholic moral thinking is evident in the second and third chapters of the recent encyclical of Pope John Paul II, Veritatis Spendor, (1993).
3 For an informative set of essays on contemporary natural law, see Robert P. George, ed., Natural Law Theory: Contemporary Essays, (New York: Oxford University Press, 1992);
4 Alasdair MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, Tradition (Notre Dame: University of Notre Dame Press, 1990) , p. 194.
5 For a discussion of the history and nature of the penitentials, see the introduction to John T. McNeill and Helena M. Gamer, eds. and trans., Medieval Handbooks of Penance, (New York: Columbia University Press, 1938).
6 “The Penitential of Cummean,” trans. by John T. McNeill and Helena M. Gamer, in Medieval Handbooks of Penance, pp. 98–117.
7 “Selections from the St. Hubert Penitential,” in Ibid., p. 292
8 Walter Ullman, Law and Politics in the Middle Ages (Ithaca: Cornell University Press, 1975), p. 121.
9 By the time of Gratian, of course, the idea of natural law already had a long history, originating in the sophist controversy over whether justice is all conventional and so relative, or is based on nature and so objective and universal (see the discussions in Plato’s Protagoras and Aristotle’s Nicomachean Ethics, Book V, and Rhetoric, Book I); elaborated by the Greek stoics into the idea that there is a universal law for human behavior that any human reason can discover, the doctrine was taken up by the Roman philosopher Cicero (see Cicero, The Commonwealth, Book III, esp. chapter 22 and Moral Duties [De Officiis], esp. Book III) whose writings in turn influenced Roman lawyers; the writings of Roman lawyers who adopted natural law ideas, such as Gaius and Ulpian, were transmitted to medieval Europe in Justinian’s sixth century collection of legal texts (see his Corpus of Civil Law [c.533 A.D.], esp. Digest, Book I and Institutes, Book I); the stoic idea of a universal moral law that anyone can discover also was incorporated into the foundational texts of Christianity (see Romans, 2:14–15) and was adapted by Saint Isidore of Seville (On Laws, 4) and Saint Augustine (see On Free Will, Book I).
10 In Paul E. Sigmund, Natural Law In Political Thought, (Washington, D.C.: Winthrop Publishers, Inc., 1971), p. 48.
11 There were, of course, other sources from which Aquinas drew. Saint Augustine, for example, in Book One of On Free Will, articulated the three-part structure of Eternal Law-Natural Law-Human Law which Aquinas later borrowed, while Cicero and Ulpian were pivotal in transmitting a version of natural law that they had in turn derived from the Stoics. Moreover, the Greeks, and then Augustine and Cicero also provided accounts of the virtues which influenced Aquinas, particularly the identification of the “cardinal” virtues of Prudence, Courage, Justice, and Temperance. Some excellent treatments of Aquinas’ theory of natural law include Jean Porter, The Recovery of Virtue, (Louisville, Kentucky: Westminster/John Knox Press, 1990); Ralph McInerny, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington, D.C.: Catholic University of America Press, 1982). Alasdair MacIntyre provides a fine description of the historical context of Aquinas in Whose Justice? Which Rationality?
12 Aquinas, Summa Theologiae, I-II, Q. 94, a. 2.
13 See Aristotle, On the Motion of Animals, ch. 7.
14 A person, for example, ordinarily may defend his life by killing his attacker provided he “intends only” to save his life, since the value of his life is clearly proportional to the value of what he destroys. Aquinas, Summa Theologiae, p. II-II, Q. 64, a. 7.
15 The quote is from Aquinas, Summa Theologiae, II-II, Q 77, a. 1, obj. 1. I have inserted the explanatory “of the market” on the basis of the fact that previously, Albert the Great, Aquinas’ teacher, had defined the just price as “what goods are worth according to the estimate of the market at the time of the sale.”
16 Aquinas, Summa Theologiae, II-II, Q. 77, a. 2, obj. 3.
17 Aquinas, Summa Theologiae, II-II, Q. 77, a. 3, obj. 4.
18 Aquinas, Summa Theologiae, II-II, Q. 77, a. 4.
19 Aquinas, Summa Theologiae, II-II, Q. 77, a. 3.
20 Aquinas, Summa Theologiae, Pt. II-II, Q. 77, a. 4.
22 Aquinas, Summa Theologiae, II-II, Q. 78, a. 1. Cf. Aristotle, Politics, Bk. I, ch. 10: “The most hated sort [of wealth-getting], and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest.”
23 See Joseph Boyle, “Natural Law, Ownership and the World’s Natural Resources,” The Journal of Value Inquiry, v. 23 (1989), pp. 191–207 for an interesting discussion of this aspect of Aquinas’ thought, and its implications for some current controversies.
24 Aquinas, Summa Theologiae, II-II, Q. 66, a. 2.
25 Aquinas, Ibid., and II-II, Q. 66, a. 7.
27 “Temporal goods are ours as to their ownership, but as to their use, they belong not to us alone but also to those whose needs can be served from what we have over and above what we need,” Aquinas, Summa Theologiae, II-II, Q. 32, a. 5.
28 Aquinas, Summa Theologiae, I-II, Q. 94, a. 4.
29 As Aquinas put the matter: “practical reasoning is concerned with what our actions can bring about and such things can be brought about in more than one way.... [Consequently,] in practical reasoning different people may correctly draw different conclusions from the same general premises.” Ibid. On the conventional nature of private property and of slavery, see Summa Theologiae I-II, Q. 94, a. 5, reply 3; on the conventional and changeable nature of marriage institutions see Summa Theologiae, Supplement, Q. 65.
30 Aquinas remarks, for example, that norms that pertain to temperance—i.e., to the regulation of the desires and pleasures of sense—are not universally binding “because the practice of temperance varies according to different times... and according to different human laws and customs.” Aquinas, Summa Theologiae, II-II, Q. 170, a. 1, obj. 3. In a passage that was almost universally ignored, Summa Theologiae, II-II, Q. 57, a. 2, Aquinas argues, also, that “man’s nature is changeable, wherefore that which is natural to man may sometimes fail.” Consequently, in Summa Theologiae, Q. 94 a.4 and a. 5, Aquinas notes that the derivative precepts of natural law can change.
31 Aquinas, Summa Theologiae, I-II, Q. 94, a. 5.
32 Aquinas, Summa Theologiae, I-II, Q. 91, a. 2.
33 Alphonsi de Ligorio, Theologia Moralis, ed. 5 (publisher unknown, 1763), pp. 230–236.
34 See John A. Gallagher, Time Past, Time Future.
35 For a brilliant overview of this interesting approach to ethics see Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning, (Berkeley, CA: University of California Press, 1988)
36 On the evolution of the prohibition on usury, see John Noonan, The Scholastic Analysis of Usury (Cambridge, MA, 1957).
37 For an overview of these developments see my article, “‘Gaudium et Spes’ and the Development of Catholic Social-Economic Teaching,” in Judith A. Dwyer, ed., Questions of Special Urgency, (Washington, DC: Georgetown University press, 1986), 173–199.
38 Quadragesimo Anno, nos. 63–65, and 71.
39 Mater et Magistra, no. 71.
40 Populorum Progressio, paragraphs 32 and 30.
41 Gaudium et Spes, paragraph 69.
42 See John Tracy Ellis, ed., Documents of American Catholic History, (Milwaukee, 1956).
43 Economic Justice for All: Catholic Social Teaching and the U.S. Economy, (Washington, D.C.: United States Catholic Conference, 1986), no. 111.
44 For a collection of many of the pivotal writings discussed below, see Charles Curren and Richard McCormick, eds., Readings in Moral Theology, #7, Natural Law and Theology, (Mahwah, N.J.: Paulist Press, 1991).
45 Among the college textbooks that took this approach and which all went through numerous editions were: Anthony Alexander, College Moral Theology, (Chicago, Regnery, 1958); Austin Fagothey, Right and Reason, (St. Louis: Mosby, 1953); seminary manuals based on the approach include: Henry Davis, Moral and Pastoral Theology, 3 vols., (London: Sheed and Ward, 1935).
46 Some of the most significant contemporary traditionalists include: John Finnis, Natural Law and Natural Rights, (Clarendon Press: Oxford: 1980) and Fundamentals of Ethics, (Washington, D.C.: Georgetown University Press, 1983); Germain Grisez, Beyond the New Morality (Notre Dame: University of Notre Dame Press, 1974); The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Chicago: Franciscan Herald Press, 1983).
47 For example, a text on social ethics used widely in American Catholic Seminaries during the middle of the twentieth century, J. Messner, Social Ethics: Natural Law in the Modern World, trans. by J. J. Doherty, (St. Louis, MO.: B. Herder Book Co., 1952).
48 J. Messner in, Social Ethics: Natural Law in the Modern World, op. cit.,
49 John A Ryan, Distributive Justice: the Right and Wrong of Our Present Distribution of Wealth, (New York: Macmillan, 1916); John A. Ryan, The Norm of Morality Defined and Applied to Particular Actions (Washington, D.C.: National Catholic Welfare Conference, 1952).
50 See Francis L. Broderick, Right Reverend New Dealer, John A. Ryan, (New York: Macmillan Company, 1963).
51 Aquinas, for example, had detailed discussions of laziness, envy, hatred, daring, ambition, meanness, patience, sobriety, lust, anger, cruelty, etc, see.Aquinas, Summa Theologiae, II-II.
52 Clarence Walton, the former President of Catholic University, for example, works out an ethic of character based in large part on the natural law account of the virtues in his book, The Moral Manager, (Cambridge, MA: Ballinger Publishing Company, 1988); see also Father Oliver F. Williams and Patrick E. Murphy, “The Ethics of Virtue: A Moral Theory for Business,” in Oliver F. Williams and John W. Houck, eds., A Virtuous Life in Business, (Lanham, Maryland: Rowman & Littlefield Publishers, Inc., 1992), although Williams and Murphy adopt an approach based on MacIntyre and Aristotle.
53 Robert Jackall, Moral Mazes: The World of Corporate Managers, (New York: Oxford University Press, 1988).
54 Alfie Kohn, No Contest: The Case Against Competition, (New York: Houghton Mifflin Co., 1986)
55 This is part of the message of, for example, John Ladd, “Morality and the Ideal of Rationality in Formal Organizations,” Monist, v. 54 (1970), pp. 488–516.
56 Pascale and Athos, The Art of Japanese Management, New York: Warner Books, 1981), p. 121.
57 See Aquinas, Summa Theologiae, II-II, Q. 64, a. 7.
58 For a history of the development of the principle of double effect after Aquinas see Joseph T. Mangan, S.J., “An Historical Analysis of the Principle of Double Effect,” Theological Studies, v. 10 (1949).
59 Proportionalists see Aquinas’ analysis in the Summa Theologiae, II-II, Q. 64, a. 7 as indicative of the structure of all human action, arguing that in all human action one must balance “pre-moral evil” against “premoral good.” See Peter Knauer, “The Hermeneutic Function of the Principle of Double Effect,” The Natural Law Forum, vol. 12 (1967): 132–162; Charles Curren, Contemporary Problems In Moral Theology, (Notre Dame: Fides Publishers, Inc., 1970), pp. 97–158; Louis Janssens, “Ontic Evil and Moral Evil,” in Readings in Moral Theology #1, eds. Richard A. McCormick and Charles E. Curran (New York: Paulist Press, 1979), pp. 61–66.
60 Knauer, “The Hermeneutic Function of the Principle of Double Effect”, p. 133. A key criticism brought against the proportionalists is that their approach reduces natural law to consequentialism, see Lisa Cahill, “Teleology, Utilitarianism, and Christian Ethics,” Theological Studies, v. 42 (1981), pp. 601–29.
61 See Henry J. Wirtenberger, S.J. the earliest of these authors who wrote, Morality and Business, (Chicago: Loyola University Press, 1962); Thomas M. Garrett, S.J. who wrote, Ethics in Business (New York: Sheed and Ward, 1963) and Business Ethics, (Englewood Cliffs, N.J.: Prentice Hall, Inc., 1966);Wilfred Lawrence LaCroix presented a rights-based version of natural law in his, Principles for Ethics in Business, (Washington: University Press of America, 1978); T. Garrett, S.J. and T. Purcell, S.J., collaborated to produce Cases in Business Ethics, (Englewood Cliffs, N.J.: Prentice Hall, Inc., 1968); T. Purcell, S.J. sketched his natural law based approach in two articles, “A Practical Guide to Ethics in Business,” Business and Society Review, (Spring 1975), 43–50 and “Management Development: A Practical Ethical Method and a Case,” in D. Jones, ed., Doing Ethics in Business, (Cambridge, MA: Oelgeschlager, Gunn & Hain, Publishers, inc., 1982).
62 Thomas M. Garrett, S.J. Business Ethics, pp. 20–23.
63 See, for example, Thomas Slater, S.J., A Manual of Moral Theology, 2 vols., 3rd ed. (New York: Benziger Bros, 1908); Dominic Prummer, O.P., Handbook of Moral Theology, trans. Rev. Gerald W. Shelton, edited for American usage by Rev. John Gavin Nolan (New York: P. J. Kennedy and Sons, 1957); for a philosophical defense of this view, see Vernon Bourke, “Is Thomas Aquinas A Natural Law Ethicist?” The Monist, 58 (1974).
64 On the rationalist elements in Catholic moral tradition, see John Langan, “Catholic Moral Rationalism and the Philosophical Bases of Moral Theology,” Theological Studies, v. 50 (1989), pp. 25–43.
65 This was the case, for example, with both Slater, S.J., A Manual of Moral Theology, and Prummer, O.P., Handbook of Moral Theology, both mentioned in the previous note.
66 For example, Kenneth Goodpaster, Ethics in Management, (Boston: Harvard University Graduate School of Business Administration, 1984); Edward Stevens, Business Ethics, (New York: Paulist Press, 1978)
67 On this point see Jacques Maritain, The Range of Reason, (New York: Charles Scribner’s Sons, 1942), p. 27ff.
68 G.F. Cavanagh, D.J. Moberg, and M. Velasquez, “The Ethics of Organizational Politics,” Academy of Management Review, vol 6 (1981), 363–74; M. Velasquez, D.J. Moberg, and G. Cavanagh, “Organizational Statesmanship and Dirty Politics: Ethical Guidelines for the Organizational Politician,” Organizational Dynamics, vol. 7, (1983), 65–80., American Business Values, (Englewood Cliffs, NJ: Prentice-Hall, 1990); M. Velasquez, Business Ethics: Concepts and Cases, (Englewood Cliffs, NJ: Prentice-Hall, 1992). For a discussion of the surprising popularity of this approach, combined with incisive criticism see F. Neil Brady and Craig P. Dunn, “Business Meta-Ethics,” Business Ethics Quarterly, vol 5, (1995), 385–398; Cavanagh, Moberg and Velasquez respond to Brady and Dunn in a further elaboration of their framework in “Making Business Ethics Practical,” Business Ethics Quarterly, vol. 5 (1995), 399–418. It should be noted that M. Velasquez and J. Cavanagh, were both originally trained in natural law ethics.
69 M. Velasquez in Business Ethics: Concepts and Cases, op. cit., for example, appeals to the “traditional view” of the natural law tradition—such as that of the proportionalist Garret, op. cit—in his analyses of moral responsibility (p. 42), of compensation (p. 103), of the ethics of contracts (pp. 79 and 278), of the right to privacy (pp. 397 and 399), of conflicts of interest (p. 377), of just wage (p. 386)
70 Cavanagh, Moberg, and Velasquez, explicitly incorporate the principle of double effect into their earliest articles, “The Ethics of Organizational Politics,” and “Organizational Statesmanship and Dirty Politics: Ethical Guidelines for the Organizational Politician,” loc. cit.
71 For an excellent analysis of the distinction between primary and secondary natural law precepts see R. A. Armstrong, Primary and Secondary Precepts in Thomistic Natural Law Teaching, (The Hague: Martinus Nijhoff, 1966). Armstrong discusses various different interpretations of what Aquinas might have meant by the variability of the secondary precepts of the natural law, and notes that there is some justification of both a cognitive interpretation of that claim, as well as an interpretation that the kind of variability Aquinas had in mind derived from variability in a culture’s social institutions.
72 The moral legitimacy of a plurality of wives is discussed by Aquinas in the Commentary on the Sentences, which subsequent editors inserted into the Summa Theologiae as the “Supplement” at Q. 65, a. 1.
73 The Thomist philosopher, Jacques Maritain, for example, has argued: “...man being an historical animal, these essential inclinations of human nature either developed or were released in the course of time; as a result, man’s knowledge of the Natural Law progressively developed, and continues to develop.” See his Range of Reason (New York: Charles Scribner’s Sons, 1942), p. 27.
74 R. J. Henle, S. J., “commentary,” in R. J. Henle, ed., The Treatise on Law, (Notre Dame: University of Notre Dame Press, 1993), p. 269.
75 See, for example, Stephen Buckle, “Natural Law”, in Peter Singer, ed., A Companion to Ethics, (Oxford: Basil Blackwell Ltd., 1993) .
76 For a short summary of his analyses see John T. Noonan, “Development in Moral Doctrine, Theological Studies, v. 54 (1993), pp. 662–667.
77 See, for example, John Noonan, Jr., The Scholastic Analysis of Usury (Cambridge: Harvard University Press, 1956); Power to Dissolve (Cambridge: Harvard University Press, 1972); “An Almost Absolute Value in History,” in John T. Noonan, Jr., ed., The Morality of Abortion (Cambridge: Harvard University Press, 1970).
78 See, for example, Columba Ryan, “The Traditional Concept of Natural Law: An Interpretation”, in Illtud Evans, ed., Light on the Natural Law, (Baltimore,:Helicon, 1965).
79 Jacques Maritain On the Philosophy of History, (London: 1959), pp. 82–84; Joseph Fuchs is the main proponent of the view that although the primary requirements of the natural law are absolute, still their secondary application to specific historical and cultural contexts can yield variable concrete natural law requirements in different historical and cultural contexts; see his Natural Law, trans. by Helmut Reckter, S.J., and John A. Dowling, (New York: Sheed and Ward, 1965), pp. 88–95.
80 See Charles E. Curran, “Natural Law and Contemporary Moral Theology,” in his Contemporary Problems in Moral Theology, (Notre Dame, IN: Fides Publishers, 1970). Joseph Fuchs, Human Values and Christian Morality, (Dublin: Gill and Macmillan Ltd., 1970).
81 See, for example, M. Velasquez, “International Business Ethics and Natural Law,” essay contributed to the Washington and Lee University Lecture Series on Social Responsibility, forthcoming in Louis W. Hodges, ed., Social Responsibility: Business, Journalism, Law, Medicine, multiple volumes, (Lexington, VA: Washington and Lee University); Velasquez would hold that while the liberal moral principles he and others have advanced in other writings are appropriate for liberal societies, they are not necessarily valid for other types of cultural contexts.
82 And for the sake of discussion, let us set aside the well known distinctions between bribery, extortion, expediting payments, etc.
83 MacIntyre, in Three Rival Traditions, op. cit., however, argues that the tradition is not continuous, but exhibits a critical break initiated by the new scholasticism of Suarez.
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