The Natural Law. Heinrich A. Rommen

of the doctrine of natural law set in only after them. So competent a scholar as Joseph Kohler has held that “if, then, a natural law is to be fashioned today, it must be attached to these Spaniards of the age of Spain’s greatness, not to Hugo Grotius.”

      In their theology and psychology these thinkers of Late Scholasticism restored to honor the Thomistic doctrine of the divine essence as source of the entire moral order and, with it, that of the primacy of the intellect over the will. The natural law is grounded in essence and reason, not in mere absolute will, in God’s absolute power. God’s omnipotence is subordinated, humanly speaking of course, to the decrees of His wisdom. Like these, therefore, the essences of things are also unchangeable. Potentia ordinata is that power in virtue of which God has created, among all possible worlds and orders of being, precisely the present one. Absolute power, on the other hand, is the power through which He can do everything that is not in itself contradictory. Hence God cannot cooperate in human sinning, and still less can He be its total cause. The Occamist question of whether God could will hatred of Himself involves an intrinsic impossibility.

      In short, the intellect grasps the pure essence of a thing, its quiddity or whatness, and prescinds from actual existence. The will, on the contrary, can lay hold of a being only as something existing or to be brought into existence; it is directed to the particular, to the individual. Intellectual apprehension is more immaterial; it grasps essential being. The will in itself is blind, in contrast to the intellect which apprehends the object immediately. The will lays hold of the object only when the latter is presented by the intellect as a known and valuable good. On this depends the question of the possibility of an immutable natural law. Positivism in law and ethics corresponds to agnosticism in epistemology.

      Like the idea of God, the idea of law was also purged of Occamist positivism. For the Late Scholastics the law belongs more to the reason than to the will. The will, it is true, moves all faculties to action. Yet it is blind: to arrange and direct are the work of reason. The will is related to the intellect as a queen is to a king. The will, the queen, manifests her desires to the king and moves him. But the intellect, the king, enacts the law (Bellarmine).

      The lex naturalis, therefore, is not related to the will of God in a simple positivist manner. It is related to God’s essence, to His reason, whence emanates the eternal law whereof in turn the natural law is, and ultimately every moral and positive law should be, a participation. The natural law has for its proximate principle the essential nature of man. It is a judgment of reason concerning the conformity of moral action and nature. But at the same time it shows that what is good ought also to be done. God, who fashioned the essential nature of man with reason and will, is simultaneously recognized as Lawgiver, too. To state it in another way, what the eternal law is in God actively, i.e., as will in accordance with His essence, that the natural law is in man passively: a law flowing from his essence and imbedded in it. The mere light of natural reason that indicates the agreement or disagreement of an action with man’s essential nature (Vasquez) is insufficient by itself. There must in addition be the rational insight that an act in accord with reason and nature is also God’s will (Suarez, Bellarmine).

      This controversy had a still deeper significance. Suarez and Bellarmine wished to stress the inner oneness of natural law and eternal law. They wished to do this, moreover, by way of the recognition of God as the Lawgiver who wills that actions correspond to being, to essential nature. Vasquez, the Spanish Augustine, had regarded rational nature, irrespective of the positive will of God, as the primary ground of the obligation to obey the natural law. For him, consequently, since an act of the lawmaker’s will belongs necessarily to the nature of law, the natural law is not properly law in the strict sense: it is not lex praecipiens, merely lex indicans. This view, a very uncommon one among the Late Scholastics,²⁷ assumed great importance in the rationalist doctrine of natural law. Arriaga and Grotius were already teaching, in order fully to bring out its immutability, that the natural law would have force even if there were no God.²⁸ Out of this there developed an autonomy of abstract human reason conditioned by the separation of the eternal law and the natural law, and also the ethico-legal rationalism of the individualistic natural law (a development which, by the way, Suarez had foretold in his controversy with Vasquez). This loosening was thus the signal for the outbreak of a fanatical rationalism in speculation, which was bent upon drawing all possible conclusions from this isolated and, later still, individualistically interpreted pure rational nature. Moreover, such fanaticism lacked all corrective of history as the domain of God’s providential activity. To the rationalistic natural law corresponded Deism in theology.