Early Modern Natural Law

Abstract

In contemporary parlance, “natural law”most commonly refers to a core doctrine of the Catholic Church and its educational institutions, according to which God has imbued nature, including human nature, with certain fundamental values or purposes which humanity can understand and which are consonant with the values taught by the Christian revelation. (See Contemporary natural law theory [Chapter 42].) The most important Catholic articulation of this idea is ascribed to the great thirteenth-century philosopher Thomas Aquinas, and accordingly it is known as “Thomistic” natural law. In modern philosophical ethics and philosophy of law, “natural law” refers to the more general idea that there is a “higher” norm, or law, that is not the work of human action, such as legislation, and bymeans of which the latter can be assessed, indeed, has to be assessed in order to be considered “valid” law. In other words, naturally given law is distinguished from “positive” law that is made (posited) by human authorities. Whatever their contemporary philosophical significance, these neat doctrineshave at best very limited relevance for understanding natural law ideas in the early modern period, from the Reformation to the end of the Enlightenment period in the late eighteenth or early nineteenth century. In fact, the tendency to bring our own concepts to bear upon the past has in this case, as in many others, played havoc with the appreciation of an important phase in the history of ethics. In post-Reformation Protestant countries, especially those in whose universities natural law had been transferred from the theology to the law and philosophy faculties, a form of natural law emerged whose main concern was with peace and sociability under civil government rather than with divine law. This aroused significant hostility in Catholic countries and universities and led to a certain wariness of a subject that might be seen as distinctive for Protestant culture. It was only with the so-called Catholic revival in the late nineteenth century that Thomistic natural law doctrine was invigorated to become the prominentflagship for Catholic moral engagement that it has been during the twentieth and twenty-first centuries. Furthermore, the general philosophical idea of a natural law as the master norm and test of legal validity cannot be clearly and uniformly applied to characterize early modern thinking on the subject, especially in Protestant states where the “new” natural law tended to converge with positive civil law. In fact, this idea of a “higher” natural law has been one of the major stumbling blocks for our understanding of significant thinkers of the period in question. The problem here, as so often in the history of ideas, is the tendency toassume that there is a core meaning of central concepts, such as natural law, and that we can trace the occurrences of these ideas in the course of history. Whether or not this ever makes sense is outside the present brief. This chapter is concerned to show, however, that natural law ideas in the early modern period can best be understood as a string of intellectual episodes that may be said to have varying degrees of family resemblance when they are considered as an intellectual and literary genre and an institutionalized resource for education, public debate and policy-making in quite different contexts. This amorphous character of natural law ideas does not detract from their significance, though that significance may be different from what is commonly expected.