There is no such thing as a "naturalistic fallacy." The argument of The naturalistic fallacy is itself a fallacy. Things get even worse when one tries to defend the Thomistic doctrine of natural law by accepting the validity of this argument, which is what Grisez, Finnis, Rhonheimer, and tutti quanti do. The Humean argument is built on empiricist and nominalist assumptions, which are completely foreign to the thought of St. Thomas.
A construction of Natural Law as presented here is just an Is/Ought fallacy (a naturalistic fallacy), which then results in an idea of common good that begs the question (another fallacy).
Statements like “knowledge is common to both men and animals” are a symptom of attempting to integrate nonsense inherent in the model instead of rejecting the model and starting anew, from fundamental principles, and if these are not clear then one must retreat even further and make those principles the primary object of inquiry.
It should be uncontroversial that any model of Natural Law, in order to be valid and authoritative, must be consistent, and then it must be consistently proven in order to be appealed to as a way of justifying authority. This has never been done in the judicial or legislative domain.
This passage from the Digest, in which Ulpiano presents his definition of ius naturale, also intrigued me. But I think Saint Thomas solved that problem. What I am going to write here is part of an essay of mine that will be published in Studies in Christian Ethics soon (I am still making revisions to the text), entitled "Natural Law Change By Addition and Original Sin: Harmonizing The Church Fathers and Aristotle on Thomas's Aquinas Theory of Property".
It is noted that Ulpian refers to natural law as something converging with biological laws, which leads him to conclude that such law “affects all creatures which deduce their origin from the sea or the land”. This view, at first sight, seems quite different from the classical one, in accordance with which the law is something pertinent to reason. It is a fact that non-rational animals, as well as all created beings, receive their inclinations from the eternal law, which directs them to their properly act and end. This participation is said to be "passive." It turns out that the rational creature, in addition to passively participating in the eternal law, also participates in it intellectually, which gives him an active position in Divine Providence. As Steven Long teaches, when the teleological order passively participated in being is apprehended rationally and preceptively, providing authoritative reasons for action, natural law emerges as participation of the eternal law in the rational creature.
If one examines Ulpian’s definition based on the sophisticated theoretical equipment developed by Aquinas, especially in ST II-II, q. 57, a. 3, one can realize that the jurisconsult promotes a confusion of registers, perhaps a metábasis eis állos génus, by extending the application of natural law to non-rational animals. As all created beings, man passively participates in the eternal law, but this participation, for creatures inferior to man, has the character of biological laws, object of study of biology, and not of a natural law or a natural right, object of study of ethics and metaphysics , except for similarity. That is to say: what for Aquinas is natural law per similitudinem, Ulpian takes to be the natural law in the absolute sense (proprie lex vocatur).
The interesting thing is that, despite being based on a clear undue transposition between genres, Thomas does not discard Ulpian’s conceptualization, but rather strives to give it some usefulness in the context of the problem he is investigating. Aquinas begins his response, in ST II-II, q. 57, a, 3, by saying that “natural right or justice is what, by nature, is adequate and proportionate to something else” (ius sive iustum naturale est quod ex sui natura est adaequatum vel commensuratum alteri). In continuation, he explains that this adequacy or commensurability can occur in two modes: (i) by virtue of an absolute consideration (secundum absolutem sui consideratione), in the way that a male is by his very nature commensurated to a female in order that he might generate from her, and in the way that a parent is commensurated to her child in order that she might feed him; (ii) not out of absolute consideration, but with respect to something that follows upon the nature (secundum aliquid quod ex ipso consequitur).
From the examples related to the first mode (which adopts the criterion that we will name of “the absolute adequacy of good to nature”), we can rapidly verify that Aquinas is referring to the three orders of natural inclinations. From this it follows that all these inclinations lead to goods that are absolutely adequate or proportionate to natures to which they refer. Therefore, they belong to natural law secundum absolutem sui consideratione. It seems that Thomas is here modifying the key to his definition, formulating an extended concept of natural law that places emphasis not on the active participation of the moral agent in the eternal law, but on the commensurability of certain goods to animals, resulting, as everything in the order of creation, of passive participation in divine intelligence. Now, according to this broad sense, it can be said that both rational and non-rational creatures are governed by a “natural right”, given that they have the first and the second orders of inclinations in common, to which correspond goods that are absolutely appropriate or proportionate to them (the conservation of being, the union between male and female, procreation and education of offspring etc.). Obviously, in the case of man, this absolute adequacy is apprehended rationally, through active participation in the eternal law, which, backed by passive participation, gives rise to natural law in the absolute sense; however, in the case of non-rational animals, such adequacy, despite of being processed secundum absolutem sui consideratione, can only be named “natural law” by similarity. By allowing Ulpian’s definition to be encompassed by a broader concept of natural law, Aquinas saves it from the fallacy of undue transposition between genres, giving it sufficient theoretical dignity so that it can be compared with the definitions of natural law and the law of nations proposed by Gaius and Isidore.
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We aim to please! Thanks sir
Drawing out the blind spot of the Mechanists enriches his exposition of natural law. Great to be exposed to classical thought…
There is no such thing as a "naturalistic fallacy." The argument of The naturalistic fallacy is itself a fallacy. Things get even worse when one tries to defend the Thomistic doctrine of natural law by accepting the validity of this argument, which is what Grisez, Finnis, Rhonheimer, and tutti quanti do. The Humean argument is built on empiricist and nominalist assumptions, which are completely foreign to the thought of St. Thomas.
A construction of Natural Law as presented here is just an Is/Ought fallacy (a naturalistic fallacy), which then results in an idea of common good that begs the question (another fallacy).
Statements like “knowledge is common to both men and animals” are a symptom of attempting to integrate nonsense inherent in the model instead of rejecting the model and starting anew, from fundamental principles, and if these are not clear then one must retreat even further and make those principles the primary object of inquiry.
It should be uncontroversial that any model of Natural Law, in order to be valid and authoritative, must be consistent, and then it must be consistently proven in order to be appealed to as a way of justifying authority. This has never been done in the judicial or legislative domain.
Dear Prof. Vermeule:
This passage from the Digest, in which Ulpiano presents his definition of ius naturale, also intrigued me. But I think Saint Thomas solved that problem. What I am going to write here is part of an essay of mine that will be published in Studies in Christian Ethics soon (I am still making revisions to the text), entitled "Natural Law Change By Addition and Original Sin: Harmonizing The Church Fathers and Aristotle on Thomas's Aquinas Theory of Property".
It is noted that Ulpian refers to natural law as something converging with biological laws, which leads him to conclude that such law “affects all creatures which deduce their origin from the sea or the land”. This view, at first sight, seems quite different from the classical one, in accordance with which the law is something pertinent to reason. It is a fact that non-rational animals, as well as all created beings, receive their inclinations from the eternal law, which directs them to their properly act and end. This participation is said to be "passive." It turns out that the rational creature, in addition to passively participating in the eternal law, also participates in it intellectually, which gives him an active position in Divine Providence. As Steven Long teaches, when the teleological order passively participated in being is apprehended rationally and preceptively, providing authoritative reasons for action, natural law emerges as participation of the eternal law in the rational creature.
If one examines Ulpian’s definition based on the sophisticated theoretical equipment developed by Aquinas, especially in ST II-II, q. 57, a. 3, one can realize that the jurisconsult promotes a confusion of registers, perhaps a metábasis eis állos génus, by extending the application of natural law to non-rational animals. As all created beings, man passively participates in the eternal law, but this participation, for creatures inferior to man, has the character of biological laws, object of study of biology, and not of a natural law or a natural right, object of study of ethics and metaphysics , except for similarity. That is to say: what for Aquinas is natural law per similitudinem, Ulpian takes to be the natural law in the absolute sense (proprie lex vocatur).
The interesting thing is that, despite being based on a clear undue transposition between genres, Thomas does not discard Ulpian’s conceptualization, but rather strives to give it some usefulness in the context of the problem he is investigating. Aquinas begins his response, in ST II-II, q. 57, a, 3, by saying that “natural right or justice is what, by nature, is adequate and proportionate to something else” (ius sive iustum naturale est quod ex sui natura est adaequatum vel commensuratum alteri). In continuation, he explains that this adequacy or commensurability can occur in two modes: (i) by virtue of an absolute consideration (secundum absolutem sui consideratione), in the way that a male is by his very nature commensurated to a female in order that he might generate from her, and in the way that a parent is commensurated to her child in order that she might feed him; (ii) not out of absolute consideration, but with respect to something that follows upon the nature (secundum aliquid quod ex ipso consequitur).
From the examples related to the first mode (which adopts the criterion that we will name of “the absolute adequacy of good to nature”), we can rapidly verify that Aquinas is referring to the three orders of natural inclinations. From this it follows that all these inclinations lead to goods that are absolutely adequate or proportionate to natures to which they refer. Therefore, they belong to natural law secundum absolutem sui consideratione. It seems that Thomas is here modifying the key to his definition, formulating an extended concept of natural law that places emphasis not on the active participation of the moral agent in the eternal law, but on the commensurability of certain goods to animals, resulting, as everything in the order of creation, of passive participation in divine intelligence. Now, according to this broad sense, it can be said that both rational and non-rational creatures are governed by a “natural right”, given that they have the first and the second orders of inclinations in common, to which correspond goods that are absolutely appropriate or proportionate to them (the conservation of being, the union between male and female, procreation and education of offspring etc.). Obviously, in the case of man, this absolute adequacy is apprehended rationally, through active participation in the eternal law, which, backed by passive participation, gives rise to natural law in the absolute sense; however, in the case of non-rational animals, such adequacy, despite of being processed secundum absolutem sui consideratione, can only be named “natural law” by similarity. By allowing Ulpian’s definition to be encompassed by a broader concept of natural law, Aquinas saves it from the fallacy of undue transposition between genres, giving it sufficient theoretical dignity so that it can be compared with the definitions of natural law and the law of nations proposed by Gaius and Isidore.
All the best,
Thiago Magalhães
thiagoalmsmagalhaes@gmail.com
Thanks for all this — I will leave it to the author to examine! This is hardly my area.