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by Kevin Clauson

Natural law theory existed in Greek and Roman cultures long before Thomas Aquinas developed it in his Summa Theologicae. However, Greek/Roman natural law had no connection to the biblical religion, nor did it make any such pretense (although it was a doomed attempt to develop a "higher law"). I will be concerned in this article with a survey on the evolution of natural law within "Christendom" from Aquinas to roughly the present, briefly attempting to demonstrate that even if there was some validity (or at least good intentions) to the concept early on, it has been fatally corrupted by subsequent human encrustations (some of which are unavoidable due to the nature of natural law since it is unwritten).

There are many ways to "slice" Thomas Aquinas.¹ However, I believe it is fair to say that Aquinas tried to construct a civil law system based ultimately (though perhaps not intentionally) on man, though he would adamantly deny this charge. Aquinas began with divine law, then proceeded to natural law, and finally to human law (actual statutes or court decisions). In the context of his theology, this was all but necessary. Roman Catholicism had become decidedly less orthodox about the nature of man, having turned from the older and biblical notion that every part of man (including his reason) had been totally affected by sin. In addition, Aquinas, and especially his disciples, had come to believe that special revelation (Scripture) was valid only for the church and church/religious matters (and that revelation came through the mediation of the institutional church--pope, councils, etc.), while natural revelation was fully explanatory of all other matters including civil law and government.

Putting his ideas about human nature together with his dichotomy of revelation, he essentially claimed that without natural law, which every person had been endowed with by God and which every person could discern by reason, there was no way to translate divine law (which is not Scripture) into human law. Direct revelation from Scripture was rejected, or at least made as equally reliable as reason, making man predisposed to rely on his reason to bring natural law "out" as the mediator between divine and human law--the connection, the bridge, if you will.

Man and his reason become the true source of law, and especially the reason of the "Sovereign" (who could be king or pope or a hybrid). Thus natural law, while appearing to emanate from God, really came from man's mind (or the sovereign Man), for there was no device by which to judge any particular natural law manifestation from the outside. If a certain sovereign were to deem something it could be said to be against natural law; however that is really to say that one person's reason does not agree with another person's reason. If either party introduces Scripture, then he is appealing to a source outside of himself and his opponent, and is, in effect, giving up natural law and the supremacy of reason.

For quite some time in Western civilization the Thomistic natural law concept was not as serious a practical problem as it could have been because, despite the appeal to universally recognized natural law and reason, the context of it all was still "Christendom" (with some deviations due to the Enlightenment).² Many who claimed to be using their reason to "discover" natural law concepts were really just discovering (or "rationalizing") their own predilections which were as often as not Christian.

Also in the midst of all this the Reformation (particularly its Calvinistic and Knoxian versions) sprung up giving renewed emphasis to the Bible. This was especially evident, for instance, in Puritan political theology as well as other groups.³ Even the "conservative enlightenment" did not wipe the Reformation away, but rather "repackaged" much of it. Hence, we find natural law and natural rights in Locke and similar writers.⁴ God was still in the picture, albeit sometimes distant.

Many early American state laws seem more directly influenced by Puritanism than by natural law, even though many Americans of the mid- 1700s professed great faith in natural law and "right reason."⁵

The most powerful assault on the Thomistic (and more "Christianized" version of natural law came in the late nineteenth century, after, but as a result of, Darwin's biological evolution theory. Over time (a short time), the evolutionary paradigm was applied to many areas beyond pure biology, including law. It would be too much to say that those who applied "social evolutionism" to the law equated exactly their legal principles and the older natural law. In fact, evolutionism lent itself more fully to legal positivism. Yet many nineteenth and twentieth century social evolutionists still wanted to believe in God (though not the true God of course), and to accommodate God and the "new principles."⁶ I argue that they adopted a new natural law. Herbert W. Titus quotes Charles William Eliot, President of Harvard from 1869 to 1909:

If the universe, as science teaches, be an organism which has by slow degrees grown to its form of today on its way to its form tomorrow, with slowly formed habits which we call laws, and a general health which we call the harmony of nature, then, as science also teaches, the life-principle or soul of that organism, for which science has no better name than God, pervades and informs it so absolutely that there is no separating God from nature....⁷

Eliot hired one Christopher Columbus Langdell to introduce this new understanding of law into Harvard Law School. He did so by using the so-called "case method," whereby case decision after case decision is studied in chronological order, leading to the conclusion that the law is developing (evolving) and legal principles are not fixed, but rather changing over time.⁸

So what I call the new natural law was no longer based on the unchanging God of the Bible, but on what was left after stripping God away, or redefining Him into "nothingness"--nature and man's reason. Man's reason would look at nature as it changed (or society as it changed) and base law on these observations. In one sense, it is no different than the old natural law--both Aquinas and the evolutionists said their law was based on "God"; but ultimately reason was the source (that is, the reason of whoever has power).

In another sense, the old and the new are different, different enough to make natural law in modern times incredible to the new-breed positivistic normativist: the old claimed to be based on God's law, the new on a new and false God. Some modern-day conservatives and evangelicals speak of natural law and right reason--reason informed by God.⁹ However, the rise of evolutionism has virtually destroyed any credibility of the old view (and its revived versions).

The evolutionists see more clearly than the conservatives and evangelicals that there really never was any objective way to "know" natural law. The evolutionists, also anxious to avoid the Bible brought it "down to earth" by essentially basing it on the observable (or so they claimed with no more evidence but a lot more "faith" than the evangelicals). Reason was now science, and science was tangible and immanent.

What we see then, in the final analysis, is a small group trying to hold onto a form of legal normativisim by the mechanism of natural law, while the evolutionists have, in effect, replaced the "guts" of natural law with nature and unaided, unjudged human reason. Although the term natural law is no longer in vogue, the concept lives on--the inner substance however having been purged of its old divine law and reason and then filled back up with the gods of science and rationalism.

The sad part of this story (and this is not the focus of this article) is that many evangelicals, refusing to admit the bankruptcy of natural law theory (old and new), are as adamantly opposed to the only viable alternative to natural law as are the evolutionists. This alternative is biblical law, the law of the Scriptures. Biblical law, being the very Word of God, is transcendent; and being written revelation, is also immanent.

Natural law, on the other hand (by whatever name), is a Trojan horse which can accommodate many enemies within. Hopefully, this brief history of the development of natural law will be a simple warning against human inventions in the sphere of law.

Kevin Clauson (J.D., M.A.) is chairman of the Government Department at Liberty University, the president of The Patrick Henry Institute and Christ's College, and a member of the National Reform Association board of directors.

Endnotes:

1. See Andrew Altman, Arguing About Law (Belmont, CA:Wadsworth, 1996), 34-38.

2. Larry Sobato and Karen O'Connor, American Government: Roots and Reform (Boston: Allyn and Bacon, 1996), 4-5.

3. See generally Douglas Kelly, The Emergence of Liberty in the Modern World, (Phillipsburg, NJ: Presbyterian & Reformed (1992). This book is a must-read.

4. Sabato and O'Connor, American Government, 7. But see also Thomas Hobbes, Leviathan and brief commentary on Hobbes in Altman, Arguing About Law, Hobbes believed in man's "total depravity" to such an extent that he argued that the people of any kingdom had to be ruled by a single all-powerful sovereign in order to maintain peace and order. This sovereign-king was ordained by God and "above the law." This was of course a justification for the absolutism of the English Stuarts. It is easy to criticize Hobbes by pointing out that, as a human being, the Sovereign himself could be (is) also depraved and wicked; however Hobbes deflected that by arguing that this possibility was outweighed by the necessity of internal order. Hobbes defended "divine right" rule, which of course could (and did) become tyrannical.

5. See, for instance, Douglas Kmiec and Stephen Presser, The History, Philosophy, and Structure of the American Constitution (Cincinnati, OH: Anderson, 1998), 137-152.

6. See generally James Turner, Without God, Without Creed: The Origins of Unbelief in America (Baltimore, MD: Johns Hopkins, 1986).

7. Herbert Titus, God, Law, and Man (Oak Brook, IL: Institute, 1994), 2-3.

8. Ibid., 34.

9. Representative examples might be William F. Buckley, a "conservative," and Dr. Norman Geisler, an "evangelical." These two individuals and the two groups they represent would disagree on details but not on the essential theory of natural law.

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