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  • The Law of Nature in the Age of Consent
  • Peter Josephson (bio)

The modern teaching of natural rights seems to have supplanted an older teaching of our duties under law. Recently a group of distinguished scholars—including Brian Tierney, Michael Zuckert, John Finnis, and Douglas Kries—has developed an extended colloquy on the relation between the modern concepts of rights and the traditional idea of duties. The question of whether a natural law is compatible with natural rights depends in part on the content of the law and the content of the rights.1 Tierney would reconcile modern natural rights teaching with the natural law tradition through the medium of "permissive natural law" as expressed in canon law (399-400).2 The example of a permissive natural law to which Tierney points most emphatically is the law that permits ownership of private property. By consent we make this law to permit division of the commons (400). He finds this teaching in the works of Marsilius, Suarez, Vitoria, and others (401-403). Thomas Hobbes does not place his natural rights in the context of this permissive law, but Tierney argues that Hobbes is an anomaly. John Locke "soon returned to a more traditional mode of discourse" (404, 401). Based on this reading of Locke, Tierney therefore rejects the interpretation that describes a "modern" period distinct from the medieval.

Locke is famous as a theorist of consent. Yet Locke also tells us that our property rights are not dependent on the consent of others; we do not require permission to preserve ourselves. We see, then, that Lockean consent differs from the earlier, medieval canonical variety. It is especially individual (and subjective) consent. The distinction may be clearest if we examine the extraordinary subjectivity of Lockean men and their rights to self-preservation and property.

In his conclusion Tierney suggests that rather than attempting to explain how rights might be derived from the law, or the other way around, we should instead see that both are "rooted in human nature itself." Rights are established by "the human capacity for free choice." Law is founded on "the human 'inclinations' defined by Aquinas" (405).3 Tierney thus asks us to adopt (generally) the scholastics' account of human nature, and suggests that when we do so we will see that the natural law tradition and modern natural rights are wholly compatible. But this account of human nature is not everyone's account. It is not Locke's.

Aquinas offers natural law as an objective standard against which human positive laws may be measured, with the purpose of orienting human lives toward a concern for the happiness of the immortal soul. The natural law aims at promoting human virtue, at seeking good and avoiding evil. The first example that Aquinas provides of such a good is preservation. Aquinas writes that "every substance seeks to preserve itself," and so "the natural law contains those things that preserve human life" (ST I-II qu94 a2). Yet Aquinas places this natural inclination below inclinations to sociability or to knowledge of the divine truth. Aquinas' concern for preservation thus does not justify intentional killing in self-defense. Because of the critical importance of right intention, Aquinas distinguishes between two men who appear to perform the same act—say, self-defense—but do so with different intentions. Thus "it is not lawful for someone who is acting in self-defense to intend to kill another man" (ST II-II qu64 a7). A right intention aims at the common good, not merely at the private. Therefore two men motivated by right intention ought not to clash. The fact of quarrel suggests that at least one of them is not moved by the good; both sides cannot be just at once.

In the Summa Contra Gentiles, Aquinas advises that our ultimate happiness is not in this life (SCG 3.48). Like Augustine, Aquinas quite clearly gives priority to the life of the soul. That human soul is explicitly "not material" and "not something composed of matter and form" (ST I-I qu75 a5). He describes the political implications of this concept in works like "On Kingship." There he elevates the good of the community...


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pp. 58-63
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