5 Pre-Renaissance Medieval Conceptions of Natural Law

Introduction:

After the Greeks and Romans, the conception of Natural Law gathered importance in the Medieval Era. During this time, Natural Law was further refined to acquire new meaning, definition and content. Concepts like divinity, virtue and values seeped deep into the notions of Law and Justice. The idea of State also underwent a significant change and Religion heavily influenced the notion of Law. A clear-cut demarcation was made between laws that were temporal and those that were eternal. The idea of Natural Law was linked with ultimate Completion, Perfection and Godliness.

Prelude to the Medieval Era: The Dark Ages

Soon after the disintegration of ancient civilisation and just before the wake of the Medieval Period, the Dark Ages prevailed and they were marked by a superimposition of the Church on the State.1 St. Augustine, St. Ambrose and St. Gregory were among the fore-runners who carried forward the idea of Natural Law and simultaneously, added new layers of philosophy to it.2 The most significant facet that Natural Law started acquiring during this phase was the

1 Julius Stone, Human Law and Human Justice (Universal Law Publishing Co. 2008) 42-45

2W. Friedmann , Legal Theory (Fifth Edition, Universal Law Publishing Co. 2008)    104

idea of sin based on a violation of moral precepts mentioned in the Scriptures. So, for instance, St. Augustine argued that human institutions become necessary only when men fail to adhere to Christian values and therefore, human institutions like government, slavery, property, etc. are nothing but a product of sin. 3 Philosophers during this period also advocated that human institutions can never become good but it is the task of the Church to ensure that human laws are tested, verified and adjusted to eternal Christian principles.4 Through the above argument, an attempt was made to logically establish the conclusion that the Church must exercise supremacy over the State to ensure that human institutions remain noble.

St. Augustine was convinced that the absolute ideal of ‘law of nature’ had been realised in a golden age of mankind when human beings lived in a state of holiness, innocence and justice.5 In that state, they were free from vices of slavery, inequality and all other forms of dominion including the bondage of death. 6 Not only that, they enjoyed commonality of possession and lived under the constant guidance of Reason.7

St. Augustine justified the existence of the State on the premise that it was an instrument to defend the Church, execute its commands and preserve order among human beings by enforcing the worldly law or lex temporalis.8 In his view, the worldly law must always strive to meet the objectives of the eternal law or lex aeterna and where it fails to converge with the eternal law, it must be discarded. Thus, St. Augustine proclaimed that those portions of worldly law which are not in consonance with eternal law must be rejected as they are clearly contrary to the commands of God. He concluded by saying that lex temporalis or worldly law can always strive to comply with lex aeterna or eternal law but no matter what, the end of that journey can never be the perfection of the former because only eternal law is capable of being complete and perfect.

Another noted scholar during this time was Isidore of Seville, who was influenced by St Augustine in many ways. Like Augustine, he believed that the state and all other institutions are the consequence of man’s corrupt nature, his sins and vices. 9 He was influenced by Roman jurists and conceived of Natural Law as law that is common to all human beings owing to the reason that it springs from the instincts of human nature and does not arise by any form of human agreement.10

Rise of the Medieval Era and its Contributions to the Development of Natural Law:

Medieval legal philosophy developed during the period from twelfth to fourteenth centuries and gathered maximum momentum in the teachings of St. Thomas Aquinas. Many new ideas were stitched into the existing fabric of Natural Law. Although the link between Theology and Law continued to remain, Medieval Thinkers made an honest attempt to rescue the body of legal rules and principles from chains of Orthodoxy imposed by the Church in the Dark Ages. So, Medieval scholars began with de-recognition of political institutions as products of sin and promoted the idea that they are instruments of justice and

3 Friedmann n(2)

4  J.E. Penner, Mc Coubrey and White’s Textbook on Jurisprudence (Oxford University Press 2008) 20-22

5  Bodenheimer,22

6  Ibid.

7  Ibid.

8  Ibid.

9 Edgar Bodenheimer, Jurisprudence The Philosophy and Method of the Law (Sixth Indian Reprint Universal Law Publishing Co. Ltd. 2009) 23

10Ibid “Natural Law is common to all peoples in that it is possessed by an instinct of human nature, not by human agreement, as the marriage of man and woman, the begetting and rearing of children, the common possession of all things, the universal freedom of all, the acquisition of those things that are taken in the air or sea or on land, likewise the restoring of property entrusted or lent, the repairing of violence by force. For this or whatever is like this, could never constitute an injustice but must be considered in accord with natural equity.”

virtue in society.11 Inspired by the writings of Cicero and Seneca, John of Salisbury wrote the Policraticus in 1159 which consolidated the aforementioned ideas.12 Revival of Aristotle’s writings and the works of Albert the Great and St. Aquinas built the substratum of this idea.13

Medieval scholars also emphasised on the supremacy of Law and considered it to be the ultimate principle in society, thereby requiring the ruler and the ruled to surrender equally to it. Thereafter, they pointed out that the source of legal authority can be attributed to people in civil society. For example, Aquinas pointed out that people had the right to choose a ruler and also throw him out of power if he violated their faith or indulged in tyranny although it would be wrongful conduct for people to murder the tyrant.14 Further, jurists of this era also deviated from the earlier notions of Christian values that denounced Private Property as a sinful institution. On the other hand, they pointed out that the right to private property was integral and paramount for every individual and was therefore, protected by Law.

Prominent Scholars of the Medieval Era and their take on Natural Law:

St. Thomas Aquinas [1226-1274 A.D.]:

St. Thomas Aquinas is regarded as the leading scholar of Natural Law in the Medieval Era. Influenced by Aristotle, Aquinas contributed to Natural Law philosophy tremendously through his writings. Aquinas began by distinguishing four different kinds of Law: the eternal, the natural, the divine and the human law.15 Lex aeterna or Eternal Law, according to Aquinas is the “divine reason and wisdom directing all movements and actions in the universe.”16 While Eternal Law governs the whole mankind it is known in its entirety only to God; human beings are capable of fathoming this law only in parts. Natural Law, on the other hand, is an interaction of human beings through their rational faculties with the cosmic law.17 Although imperfect and incomplete it is a reflection of the Perfect Law or Eternal Law. Natural Law is therefore that part of Eternal Law which human beings can comprehend because of being endowed with Reason.

According to Aquinas, Natural Law18 is the voice of Reason in man which dictates him to distinguish between good and evil. To the question of determination of good and evil, Aquinas was of the opinion that everything that man was naturally inclined to do was good and the converse of it was evil.19 The former constitutes Natural Law. So, instincts of self-preservation, attraction towards the opposite sex, desire to marry and create a family and lead a social life come naturally to human beings and therefore, constitute a part of Natural

11Friedmann,105

12 Penner n(4) 23

13 Wayne Morrison, Jurisprudence: from the Greeks to post modernism (Cavendish Publishing Ltd. 2000) 65-67

14 John Finnis, Natural Law and Natural Rights (Oxford University Press 1980) 284-86

15Ibid

16Ibid

17 http://www.mq.edu.au/about_us/faculties_and_departments/faculty_of_arts/mhpir/staff/staff- politics_and_international_relations/john_kilcullen/medieval_theories_of_natural_law/ accessed on November 20,2014

18 Fr. R. O’Brien Waugh, “Natural Law” (1966) 16 U.N.B.L.J. 34 http://heinonline.org/HOL/Page?handle=hein.journals/unblj16&div=6&collection=journals&set_as_cursor=12 &men_tab=srchresults&terms=natural|law|in|medieval|era&type=matchall#43 accessed on 1 December,2014

:“Aquinas’ third form of law is natural law. It is the participation of man in the eternal law through his nature, with all its tendencies towards self-perfective activities. As has been suggested these tendencies are of various levels but all are directed towards the good, that is, towards whatever will perfect the human individual and the human species. In common with all other beings whatever, man desires his own cultural existence hence the natural law of the preservation of human life. With all animals, he shares the mating instinct, and a concern for the education of offspring, etc. Peculiar to man, however, are the inclinations to live in society and to accomplish what is necessary to make human society possible, such as the avoidance of offence to those with whom he lives, and so on.”

19Ibid.

Law. Aquinas also considers every act of virtue to be part and parcel of Natural Law since according to him, being virtuous is a natural instinct of human beings.20

Natural Law is further supplemented by lex divina or the divine law. Divine Law is revealed by God through the Holy Scriptures and lays down more specific directions about conduct of people. The last kind of Law is lex humana or Human Law and is designed for common good designed by someone who has care for the community.21 In order to be just, human law must conform to some postulate of Reason.22

Apart from the above, St. Thomas Aquinas also laid down a conception of Justice which is influenced heavily by Cicero and Aristotle. According to him, Justice could be divided into two categories: Distributive and Commutative. While in Distributive Justice, an individual was entitled to receive common goods in accordance with his status and position of prominence, Commutative or Corrective Justice was intended to act as an equaliser/leveller under which losses suffered by someone as a consequence of another person’s wrongful actions could be restored and the unjust enrichment of the latter be rectified.23

Aristotle’s Conception of Law and Justice in a nutshell:

John Duns Scotus [1290-1349 A.D.]:

John Duns Scotus, a Scotch Franciscan monk is credited with generating the idea that Will dominates Reason and not vice-versa. This is exactly the converse of what Aquinas taught. According to Scotus, power and justice coincide only in God as there is no Law above God

20http://www.iep.utm.edu/scotus/ accessed on November 20, 2014

21 Bodenheimer,25

22 Ibid.

23 Ibid.

and therefore, His Will is absolute.24 Further, he laid down that there is only one principle of Natural Law i.e., to love God.25

William of Occam [1290-1349 A.D.]:

William of Occam continued the line of thought started by Duns Scotus and emphasised that universal rules of conduct are dictated by natural reason. Further, Natural Law encompasses the idea that rules may be deduced from general principles of the laws of nature which are not fundamental in character and are liable to modification by authority.26 He also stated that there is no natural law. Occam further maintained that no natural law is discoverable by human beings and that as God had revealed his present will in the sacred books, the ones laid down there alone will constitute natural law.27

Realists versus Nominalists: Dimensions of the Debate

A primary philosophical debate which surfaced in the Medieval Era was on the question of universal principles.28 There were two main schools of thought which adopted two different approaches towards the solution and hence, the debate. These two schools were the Realists and the Nominalists.29 According to the Realists, the world of our thought and the world of external reality are parallel to each other. Human beings frame mental representations of the external objects and phenomena, which exist in the real world. These mental representations are reflections of the real world and human beings are capable of framing them because they are endowed with Reason. Therefore, Realists believed that human beings are capable of ‘knowing’ the world as it is because they have been bestowed with that capacity by God. So, concepts like virtue, truth, justice and humanity are universal principles, non-negotiable in their nature because they exist in the external real world and the human mind, being aware of their existence is capable of framing their mental representations. 30 So, Realists argued that the aforementioned concepts are real, not illusory.

On the other hand, Nominalists like Duns Scotus and William of Occam argued that the so-called universal principles are unreal. According to them, the only real things that exist in the world are those that we can perceive through our senses to exist or those that we get to know through our observation. According to them, everything else is only a mirage. Logically, therefore, the ‘generalisations and classifications’31 that we use to describe the real world are mere names or nomina. They cannot be real simply because they cannot be perceived or observed like other objects. Therefore, abstract principles cannot be taken as universals because they are beyond the scope of human perception. Thus, they concluded that universal principles are unreal entities.

In contemporary times, Realist perceptions of Law have contributed significantly to the idea of fundamental rights. For instance if one looks at the domain of Human Rights, it has been considerable impacted by the Realist vision of Humanity as universal constant- an axiom. The acceptance of Humanity as axiomatic has automatically given birth to the concept of inalienability of these rights. For instance, the right to life or livelihood or the right to found a family have come into existence because of the fact that they have been accepted as real.

24Friedmann,113

25 Ibid.

26 Friedmann n(24)

27 Bodenheimer,29

28 Bodenheimer,27

29Ibid

30Ibid

31Ibid

Realists and Nominalists:

Realists:

• World of our thought and external reality are parallel to each other

Nominalists:

• Universal principles are unreal, only what we can perceive by senses is real

Other Scholars of the Medieval Age and their Contributions:

Two Catholic scholars, Francisco de Vitoria (d. 1546) and Francisco Suarez (1548-1617) also contributed to the philosophy of the Middle Ages. Their writings depicted a return to the Rationalism of Aquinas. The question of whether will or reason was a nobler faculty was answered and resolved in favour of Reason. According to Suarez, Natural Law embraces those moral principles which are necessary for righteous conduct. 32 He also pointed out that the legislation and implementation of Law by means of sanctions required an exercise of will on the part of governing authorities.33

Conclusion:

The biggest facet of Natural Law in the medieval era was its acquaintance and subsequently, union, with Religion. This ensured that Natural Law became permeable to society as a whole. Religion captivated the common man and was more comprehensible to him than the ideas of statehood, politics, governance and institutionalism and therefore, it appealed to those segments of society which had not been touched earlier by the Stoics and Sophists. Thus it would be apt to say that Natural Law in the medieval era symbolises man’s eternal quest for principled existence in society and his obsession with ideas of chastity, purity and nobility. Mankind’s struggle to distinguish itself from the rest of the animal kingdom, establish clear rules of proximity to his conception of the Creator and set for itself and others boundaries of movement and operation has been reflected widely in medieval conceptions of natural philosophy. Christianity and Christian interpretation of life dominated the medieval mindset and therefore, it was bound to be a phase where the Church and its followers became the epicentre of societal standards, values and norms. This resulted in the seeping of Christian principles into the domain of philosophy that was hitherto governed by metaphysical yet logical conceptions of the Greek and Roman civilisation. The march of Law into the domain of Religion began in the medieval era and the interaction of these two domains was destined to have a distinct impact. Subsequently, Law succeeded in establishing a separate territory but could never isolate itself entirely from religion. This is evident from several aspects of modern day laws and legislations, for example, the recognition by the state of rights linked with the practice of one’s religion.

32Bodenheimer,29

33    Ibid.

Summary:

1. In the Dark Ages preceding the Medieval Era, Natural Law was linked with the idea of Divinity and was said to be captured in the Scriptures which therefore, could not be violated. The Church dominated the areas of Law and Justice and also guided the course of politics in the Dark Ages.
2. St. Augustine evolved the concept of Original Sin and stated that all human institutions are the product of sin.
3. Augustine also justified the existence of the State on the ground that it was an instrument to defend the Church
4. After the Dark Ages, the Medieval Era dawned with the teachings of St. Thomas Aquinas. He laid the foundation of his teachings by delinking the idea of political institutions from the concept of sin.
5. Aquinas linked law with Rationality, distinguished between four types of laws and stated that Natural Law is a part of Eternal Law.
6. John Duns Scotus and William of Occam stated that Will dominates Reason and not vice-versa.
7. The Realists and Nominalists argued about the truth of universal principles. While the Realists considered the universals to be real, the Nominalists considered them to be nominal only.