The Natural Law and Synderesis:

St. Thomas Aquinas and Leo Strauss

Joseph M. Haggarty

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There were several reasons, according to Douglas Kries, why the publication of

Leo Strauss’s Natural Right and History in the early 1950’s might have been expected to

arouse interest and even enthusiasm among the students of St. Thomas Aquinas. And

yet,

despite such favorable auguries, a congenial affiliation of Straussians and Thomists was never formed. Many factors probably contributed to the losing of the opportunity, but presumably chief among them was the fact that, even though Strauss’s view of Thomas was genuinely respectful, it was not unequivocally sympathetic. Strauss preferred classical natural right theory to modern natural right theory, and he came to the conclusion that Thomas’s teaching on natural right—while certainly ‘pre-modern’—introduced novelties into the classical position which weakened it rather than improved it.1

In his article, Kries goes on to investigate “Strauss’s reservations about Thomas’s

statement of the problem of natural right.”2 In this essay, I intend to show that the

interpretation out of which those reservations arise is faulty. Whether this will tend to

strengthen the affinities of the two schools I do not know; at the very least it should

further Kries’s goal of “contribut[ing] to a more fruitful exchange between the students of

Leo Strauss and those of Thomas Aquinas.”3

The reply which St. Thomas gives to an objection in an article of the Quaestio

Disputata de Malo allows us direct access to those aspects of the Angelic Doctor’s

thought which concern Strauss. The fifth objection in Question 15, Article 1 (“Whether

every Act of Lust Is a Sin”) is as follows:

Moreover, that which is a sin [peccatum] in its genus, ought not to be done, regardless of the good which it takes as its end, according to Romans 3:8, “ . . . not, as certain men say about us, [that we say] ‘Let us do evil, so that good may

1 Douglas Kries, “On Leo Strauss’s Understanding of the Natural Law Theory of Thomas Aquinas,” The Thomist, April 1993, 57 (2), 215 2 ibid, 216 3 ibid, 216

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come of it.’” But, just as a commentator4 says on Book V of the Ethics, “The equitable man [epices], that is, a virtuous man, commits adultery with the wife of a tyrant so that, killing the tyrant, he may liberate his country [patriam].” Therefore, adultery is not of itself a sin; much less, therefore, is fornication a sin.5

St. Thomas answers,

To the fifth [objection] it must be said that that commentator must not be upheld on this point: since there is no utility for the sake of which anyone ought to commit adultery, just as no one ought to tell a lie for any utility, as Augustine says in the book Against Lying.6

In this example we see what Strauss terms the “universally valid and immutable”7

character of St. Thomas’s “principles of natural right.”8 This is to be understood as a

modification of the doctrine of Aristotle, who teaches that “all right—hence also all

natural right—is changeable; he does not qualify that statement in any way.”9 Thomas’s

innovation consists not in the claim that all rules of natural right are immutable, Strauss

points out, but in the assertion that, whereas the “more specific rules (e.g. the rule to

return deposits)”10 can be dispensed with under certain conditions, the underlying general

axioms of natural right, that is, the first principles of natural law grasped in virtue of “a

4 The footnote to the passage in St. Thomas Aquinas: On Evil, trans. Jean Oesterle (South Bend, IN: University of Notre Dame Press, 1993), cited from the Past Masters Database, <http://library.nlx.com.proxy.bc.edu/display.cfm?&clientID=175698&depth=2&infobase=pmaquinas.nfo&softpage=GetClient42&titleCategory=0&view=browse>, on 12/12/2004 : “Commentator on Book V of the Ethics: Anonymous earlier commentator On the Ethics of Arist. V, c. 14 (1137b22; Heylbut 249, lines 28-32) Robert Grosseteste's translation: `Dirigere quod deficit. Hoc enim opus epieikeos dirigere: lege enim universaliter iubente ab aliena abstinere uxore tamen in tempore et secundum rationem factum non est inconferens, iam enim aliquis tyranni uxorem corrumpens per ipsam liberavit patriam'. (`To correct what is defective. For this is a work of equity: for though the law commands universally to abstain from the wife of another, if it is done at the proper time and according to reason it is not blameworthy, for someone seducing the wife of a tyrant has already freed his country through her'.) (ms. Oxford All Souls College 84 f. 99 va).” 5 St. Thomas Aquinas, Quaestio Disputata de Malo, q. 15, a. 1, obj. 5. All translations of St. Thomas are my own unless otherwise noted. 6 ibid, ad 5 7 Leo Strauss, Natural Right and History (Chicago, Il.: University of Chicago Press, 1965), 157 8 ibid 9 ibid, 158 10 ibid, 157

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habitus of practical principles, a habitus which [St. Thomas] calls “conscience” or, more

precisely, synderesis,”11 cannot.

In addition to what Strauss regards as the distinctive character of the teaching,

also apparent in our example are the implications of it which Strauss finds unsettling.

The first of these pertains to the principles of the “Thomistic doctrine of natural right, or,

more generally expressed, of natural law.”12 In establishing the universal and immutable

character of natural law, both the objector and St. Thomas himself appeal to theological

authority—Sacred Scripture and St. Augustine. While it is true, as Strauss is well

aware,13 that Thomas asserts that the habit of synderesis is natural, not given by divine

grace,14 and that the principles of natural law are consequently known to man by nature

without the help of divine revelation,15 the ease with which Aquinas’ discussion here

refers the matter to the Divine Legislator cannot but arouse suspicion—a suspicion

corroborated by Strauss’ observation that the fundamental propositions of the natural law

coincide both in content and in rigidity with the Second Table of the Decalogue.16

The significance of his observation about the natural law takes increase, Strauss

suggests, if we keep in mind the difficulty regarding man’s natural end which Aquinas

has inherited from Aristotle. Because the “natural law which is knowable to the

unassisted human mind and which prescribes chiefly actions in the strict sense is related

to, or founded upon, the natural end of man,”17 the natural law’s ability to command

moral actions is susceptible to a certain impediment:

[the natural end of man] is twofold: moral perfection and intellectual perfection; intellectual perfection is higher in dignity than moral perfection; but intellectual perfection or

11 ibid 12 ibid, 163 13 “It is reasonable to assume that these profound changes were due to the influence of the belief in biblical revelation. If this assumption should prove to be correct, one would be forced to wonder, however, whether the natural law as Thomas Aquinas understands it is natural law strictly speaking, i.e., a law knowable to the unassisted human mind, to the human mind which is not illumined by divine revelation.” ibid 14 Summa Theologiae, Ia q. 79, a. 12, c 15 Summa Theologiae, Ia IIae q. 91, a. 2, c 16 Natural Right and History, 163. cf. Summa Theologiae, Ia IIae q. 100, a.1, c 17 ibid, 163

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wisdom, as unassisted human reason knows it, does not require moral virtue.18

If natural law derives its authority from man’s natural end, and if man’s natural end is not

ultimately moral but intellectual, then how can natural law enjoin any kind of morality

upon the man who directs himself towards wisdom? According to Strauss,19 St. Thomas

took this conundrum as impelling us towards the conclusion that man’s ultimate end must

lie beyond any merely natural end: “Thus natural reason itself creates a presumption in

favor of the divine law, which completes or perfects the natural law.”20

Hence Strauss maintains it to be St. Thomas’s doctrine that the authenticity of the

divinely revealed law is recommended to reason insofar as that divine law, by directing

man to his ultimate and supernatural end, serves here on earth as the Aufhebung of the

natural dialectic of speculative and practical reason. In so doing, divine law supplies the

authority—an authority which natural law itself lacks—required to obligate even the wise

man to conduct himself according to the dictates of natural right. In that obligation,

furthermore, the principles of natural right as Aristotle understood them become absorbed

into the Decalogue and so share in its immutability. Hence there is at least implicit in St.

Thomas’s doctrine of man’s end grounds for a natural theology capable of giving rise to

his innovative notion of natural law.

Nor is this all. According to Kries’ account,

Ancient natural right teaching, Strauss claims, does not ground itself in a divine lawgiver who promulgates and enforces through providence, for the ancient teaching does not appeal to the author of nature but to nature itself: “The example of Aristotle alone would suffice to show that it is possible to admit natural right without believing in particular providence or in divine justice proper.”29

———————

29 Natural Right and History, p.164 21

18 ibid, 163-164 19 Unfortunately, Strauss declines to mention where in the writings of St. Thomas he has found evidence of this argument. 20 ibid, 164 21 Kries, 225

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Referring to Platonic Political Philosophy, another of Strauss’s works, Kries remarks that

[s]ince the ancients did not ground their understanding of natural right in the notion of a divine lawgiver, Strauss has very real doubts about the existence of a natural law theory, properly speaking, in the ancient world at all; the exception would be Stoicism, which, like Thomas, accepted the doctrine of divine providence.22

The implication here is similar to that of Strauss’s argument from Natural Right and

History: Thomas’s doctrine of immutable natural right does not proceed from an insight

into the nature of human actions, but relies instead on arguments of a theological

character—whether that theology be natural (providence) or revealed (the Decalogue).

This makes sense of the first of the comments with which Strauss concludes his

discussion of Aquinas:

At any rate, the ultimate consequence of the Thomistic view of natural law is that natural law is practically inseparable not only from natural theology—i.e., from a natural theology which is, in fact, based on belief in biblical revelation—but even from revealed theology. Modern natural law was partly a reaction to this absorption of natural law by theology. The modern efforts were partly based on the premise, which would have been acceptable to the classics, that the moral principles have a greater evidence than the teachings even of natural theology, and, therefore, that natural law or natural right should be kept independent of theology and its controversies.23

Far more straightforward than the first is the second worrisome implication of St.

Thomas’s immutable version of natural right. There is no indication that the objector in

the de Malo article wanted to see the natural rule against adultery abolished; he simply

argued that, under certain circumstances (which, we note, would seem to be very rare),

the common good of the country takes precedence even over this prohibition. From the

point of view of one who has care of the common good, then, St. Thomas’s categorical

rejections of adultery, lying, and by implication all other violations of the natural law

seem so immoderate as to amount to political imprudence, if not sheer recklessness.

22 Kries, 226 23 Natural Right and History, 164

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Strauss points to this difficulty in his exposition of Aristotle’s teaching:

The common good consists normally in what is required by commutative and distributive justice or by other moral principles of this kind or in what is compatible with these requirements. But the common good also comprises, of course, the mere existence, the mere survival, the mere independence, of the political community in question. Let us call an extreme situation a situation in which the very existence or independence of a society is at stake. In extreme situations there may be conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law. A decent society will not go to war except for a just cause. But what it will do during a war will depend to certain extent on what the enemy—possibly an absolutely unscrupulous and savage enemy—forces it to do. There are no limits which can be defined in advance, there are no assignable limits on what might become just reprisals. But war casts its shadow on peace. The most just society cannot survive without “intelligence,” i.e., espionage. Espionage is impossible without a suspension of certain rules of natural right. But societies are not only threatened from without. Considera-tions which apply to foreign enemies may well apply to subversive elements within society . . . Natural right must be mutable in order to be able to cope with the inventiveness of wickedness. What cannot be decided in advance by universal rules, what can be decided in the critical moment by the most competent and most conscientious statesman on the spot, can be made visible as just, in retrospect, to all; the objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.24

Given the fact that the immutability of Thomas’s natural law doctrine robs the statesman

of the freedom necessary to do justice to his office, the second conclusion which Strauss

draws in its regard comes as little surprise:

The second important respect in which modern political thought returned to the classics by opposing the Thomistic view is illustrated by such issues as the indissolubility of

24 ibid, 160-161

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marriage and birth control. A work like Montesquieu’s Spirit of Laws is misunderstood if one disregards the fact that it is directed against the Thomistic view of natural right. Montesquieu tried to recover for statesmanship a latitude which had been considerably restricted by the Thomistic teaching.25

It would be wrong to suppose that either of Strauss’s hesitations about the

implications of St. Thomas’s natural law teaching can be dismissed easily. They arise

from a prolonged, profound, and impressively learned meditation on man, the city, and

religion—a rare marriage of scholarship and insight that rewards our every renewed

consideration. However, they also arise from a certain reading of St. Thomas. I am

convinced that this reading is in certain critical respects mistaken, and will endeavor to

demonstrate this below.

We recall that the first objection brought into question whether the Thomistic

natural law doctrine is in fact a natural doctrine—the consequence of a direct

philosophical treatment of the nature of man the moral agent—and is not somehow

dependent on theological considerations. This difficulty cannot be adequately addressed

unless we distinguish two different ways in which St. Thomas treats these principles of

moral action.

The first of these is what we find in the Treatise on Law in the Summa

Theologiae—the treatment of the rational principles of moral action accorded by the

science of sacra doctrina. St. Thomas gives an account of the nature of this science in

the very first question of the work which embodies it. In response to the query of Article

7, “Whether God is the subject of this science,” St. Thomas makes the following point:

I respond that it must be said that God is the subject of this science. For the subject [of a science] is related to that science in the same way that an object [is related] to a power or a habit. But that under the ratio of which all things are referred to a power or habit, is that which is properly designated as the object of a power or habit. Thus man and stone are referred to vision insofar as they are

25 ibid, 164

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colored, whence the colored is the proper object of vision. But it is under the ratio of God that all things are treated in sacred doctrine—either because they are God themselves, or because they have a ordination towards God, either as to a principle or [as to] an end. Whence it follows that God is the proper subject of this science.26

This being the case, it is only logical for St. Thomas to speak of the rational principles of

moral action as law—a way of speaking, as Strauss has noted,27 which considers these

principles in reference to the Eternal Lawgiver’s concern for the common good of His

community.28 Indeed, if Aquinas were not to consider and speak of such moral principles

in this way, it would be out of place for him to present a direct treatment of them in a

work of sacred doctrine in the first place. As it is, the Angelic Doctor considers them in

the Treatise on Law29 because they function as exterior principles of human actions,30

and these actions are necessary for the attainment of man’s happiness31—the happiness

which is found only in the vision of God.32

Thus the fact that St. Thomas treats the rational principles of morality in Summa

Theologiae Ia IIae q. 91, a. 2 and q. 94 in a theological manner gives no support whatever

to the opinion that “Thomas attempted to establish what is more evident (natural right)

upon what is less evident (God).”33 But it does not disprove the opinion either. To the

contrary, it might lead one to believe that the issue is incapable of resolution—at least as

regards the theological writings which comprise the bulk of St. Thomas’s corpus.34 For if

26 Summa Theologiae, Ia q. 1, a. 7 c 27 v. pp. 4-5 above 28 Cf. St. Thomas’ definition of the essence of law, a definition which thus applies to natural law: “And thus from the four preceding articles can be gathered a definition of law, which is nothing other than a certain ordinance of reason towards the common good, promulgated by him who has administration of the community” (Summa Theologiae, Ia IIae q. 90 a. 4, c). 29 Summa Theologiae, Ia IIae q. 91 a.2 and q. 94 30 ibid, Ia IIae q. 90 divisio textus 31 ibid, Ia IIae q. 6 divisio textus 32 ibid, Ia IIae q. 3 a. 8 33 Kries, 226 34 One might suppose that any treatment found in his philosophical works would be sufficient to resolve the question. Thus, for example, St. Thomas mentions that “it would be against the natural law to reward benefactors with punishment” in the discussion of equity in the Commentary on the Nicomachean Ethics (trans. C.I. Litzinger (Notre Dame, IN: Dumb Ox Books, 1993), p. 345 [Book V, Chapter 10, 1137b19-24 (Lectio XVI, §1086)]. But even this is not enough, since the term natural law is formally equivocal in St. Thomas, as will be shown below.

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he is compelled to consider, in such writings, rational moral principles under the

formality or ratio of God, and thus as law, how could one ever with certainty attribute a

theological grounding to the content of the moral doctrine? This is indeed a formidable

difficulty, but it should be noted that does not prevent the question from being resolved in

the other direction. For, as St. Thomas points out in Ia q. 1, a. 5, ad 2, it belongs to the

teacher of sacra doctrina to make use of what is known by natural reason alone:

To the second [objection] it must be said that this science [i.e., sacra doctrina] is able to receive something from the philosophical disciplines, not that it needs them from any necessity, but for the sake of better manifesting the things of this science. For it does not receive its own principles from the other sciences, but immediately from God through revelation. And for this reason, it does not receive [anything] from other sciences as from its superiors, but it makes use of them as inferiors and servants; just as master-builders make use of those serving under them, and the politician makes use of soldiers. And the fact that it makes use of them is due not to any defect or inadequacy on its part, but is on account of the defect of our intellects, which from these things which are known through natural reason (from which all other sciences proceed), are more easily led by the hand into those things which lie beyond reason—namely, those things which are treated in this science.35

The Summa Theologiae is thus full of instances in which St. Thomas, the teacher

of sacra doctrina, speaks virtually as a philosopher.36 In accord with the example with

which we began, we will examine the manner in which he treats vices pertaining to

truthfulness and to marriage. The reason why St. Thomas treats truthfulness in the first

place is because it is a particular virtue,37 and virtue is a principle of human acts,38 which

35 Summa Theologiae Ia q. 1, a. 5, ad 2 36 “And on this account the philosopher and the man of faith also consider different things about creatures. For the philosopher considers what pertains to them according to their own proper natures—for example, that fire is borne upwards. The man of faith, however, considers only those things about creatures which pertain to them according as they are related to God . . . If, then, the philosopher and the man of faith consider in common anything about creatures, they do so through different means and principles. For the philosopher takes his argument from the proper causes of things; the believer, however, from the first cause” (St. Thomas Aquinas, Summa Contra Gentiles, Book II, Chapter 4). 37 Summa Theologiae, IIa IIae Prologue 38 ibid, Ia IIae q. 6, divisio textus

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acts are necessary for the attainment of man’s perfect happiness,39 which happiness

consists in the vision of God.40 In the body of IIa IIae q. 110, a. 3, St. Thomas states his

position on “Whether every lie is a sin”:

I respond that it must be said that that which is evil according to itself in its genus, is in no way able to be good and licit, since in order for something to be good and licit, it is required that all factors concur with what is right: for “the good is [such] on account of the whole cause, whereas the evil is [such] on account of [any] single defect,” as Dionysus says in the fourth chapter of On the Divine Names. A lie, however, is evil in its genus, as it is an act bearing on undue matter. For since words are naturally signs of things understood, it is unnatural and undue that anyone signify by a word that which he does not have in his mind. Whence says the Philosopher, in Book IV of the Ethics, that “lying is in itself wrong and must be shunned; the truth, however, is both good and praiseworthy.” Whence it is that every lie is a sin, as Augustine asserts in his book Against Lying.41

The premises of Thomas’s argument are drawn from natural reason. Even if his account

of the naturally end-oriented character of speech, or his assertion that lying, as an act

bearing on undue matter, is consequently evil in its genus, happens to be mistaken, he is

still innocent of making any appeal to the Lawgiver of providence or of the Decalogue.

We find the same to be true in St. Thomas’s discussion of polygamy, treated

insofar as it pertains to matrimony,42 which, as one of the seven sacraments,43 was

instituted by Jesus Christ so that man might be saved from mortal sin and attain the

ultimate end of human life, the beatific vision.44 To the question, “Whether it is against

the natural law to have several wives?” St. Thomas responds as follows:

It must be said that there are present in all natural things certain principles by which they are able not only to effect their proper operations, but by which they render them suitable to their end—whether these be actions which

39 ibid 40 ibid, Ia IIae q. 3, a. 8 41 ibid, IIa IIae q. 110, a. 3, c 42 ibid, Supplement to IIIa, q. 64, divisio textus 43 ibid, IIIa, q. 66, divisio textus 44 ibid, IIIa, Prologue

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belong to a thing from the nature of its genus, or from the nature of the species, as, for example, it belongs to a magnet to be borne downwards from the nature of its genus, and to attract iron from the nature of its species. But just as in things that act, the principles of action are from the form itself, by which principles the suitable operations proceed to the proper end; thus in the things which participate in knowing, the principles of acting are knowledge and appetite. Whence it is necessary that there be a natural conception in the cognitive power, and a natural inclination in the appetitive power, by which the operation suitable to the genus or the species be rendered proportionate to its end. But among animals, man [alone] knows the ratio of the end and the proportion of actions to the end, and for this reason he is endowed with a natural conception, by which he is directed towards acting, [which natural conception] is fittingly called natural law [lex naturalis] or natural right [ius naturale]. In the rest of the animals, however, it is named natural estimation: for the brutes are impelled to the execution of suitable actions by the power of nature rather more than they are ruled as agents according to their proper judgment. The natural law, therefore, is nothing else than a conception with which man is naturally endowed and by which he is directed towards acting suitably in his proper actions—whether this [action] belongs to him from the nature of the genus, as to beget, to eat, and suchlike; or from the nature of the species, as to reason and suchlike. However, everything that renders an action unsuitable to the end which nature intends in a certain work, is said to be against the law of nature. But it is possible for an action to be unsuitable either to its principal or to its secondary end . . . If, therefore, an action should be unsuitable to the end as entirely frustrating the principal end, it would be directly prohibited by the primary principles of the natural law, which function in matters of operation as do the common conceptions in speculative matters . . . Now marriage has for its principal end the procreation and education of offspring, which indeed belongs to man according to the nature of his genus; whence also it is “common to all animals,” as it is said in Book VIII of the

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Ethics. And thus offspring are designated as the good of matrimony.45

Again, St. Thomas explains this particular application46 of the rational principles of moral

action, which he terms the natural law, without any reference to a providential Lawgiver

or to the common good of the community which He governs. The principles that are

evident to the philosopher are not the cosmic polity and its Ruler, but rather the

inclinations and ends, such as sexual appetite and procreation, found in nature. If we had

not already seen St. Thomas treat the rational principles of moral action in a properly

theological manner, the account here would leave us puzzled by St. Thomas’ choice of

the name “natural law.”

It is, of course, in this second, ‘philosophical,’ manner that the natural moral

agent first apprehends the natural law. In other words, he does not, in the first instance,

grasp the natural law as a law. If he sees an act of morbid gluttony or sexual perversion,

he will first recognize it as evil and unnatural, but not as unjust. This is because he first

grasps the act in relation to the general or specific good to which it is intended by nature.

He does not begin by grasping it in relation to some common good, or in relation to any

party other than the man who does it; it certainly does not seem to him a failure to render

to another party that which is his due (in this case, His due). I believe that this is why St.

Thomas, when treating of natural right in the strict sense47—i.e., the object of natural

justice48—makes the following remark:

To the third [objection] it must be said that that is called divine right which is divinely promulgated. And this indeed is partly about those things which are naturally just, whose justice, however, is hidden from man; and it is partly about those things which become just by divine institution. Whence also divine right can be distinguished into these two, just like human right. For there are in the divine law certain things which are enjoined because they are good,

45 ibid, Supplement to IIIa, q. 65, a.1, c. Emphasis on the words “The natural law, therefore . . .” is my own. 46 Only the principles of this application are cited here, as they are sufficient for our purpose. 47 St. Thomas’s use of natural right (ius naturale) as a synonym of natural law (lex naturalis) in the passage quoted above (Summa Theologiae, Supplement to the IIIa, q. 65, a. 1, c) becomes more intelligible when we observe that natural right is used in this sense by Cicero and Isidore, the authorities cited in the replies to the fourth objection of that article. 48 Summa Theologiae, IIa IIae q. 57, a. 2, c

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and certain things which are prohibited because they are evil; and, on the other hand, there are certain things which are good because they are enjoined, and are evil because they are prohibited.49

What is naturally just, as such, involves “a work adequated to another according to some

mode of equality.”50 While it is in fact the case that actions such as truth-telling and

marriage are adequated to the Author of our nature—so that it is naturally just to do them

and naturally unjust to act in a manner opposed to them—this fact remains unknown to

those by whom the work of Divine Legislator, as such, is unknown. Yet even these are

by nature capable of recognizing such actions as good, and their opposites as evil.

It is therefore the case that Strauss, the moderns, and the classics are in agreement

with St. Thomas in holding that “the moral principles have a greater evidence than the

teachings of even natural theology and, therefore, that natural law or natural right should

be kept independent of theology and its controversies.”51 In the merely natural or

‘philosophical’ order—which is all that is necessary for natural praxis—the rational

principles of morality are grasped prior52 to the insights of metaphysics, and so remain

undisturbed by all metaphysical speculation. It goes without saying, however, that these

principles as regarded by the theologian, i.e., as natural law properly speaking, cannot be

“kept independent of theology and its controversies.”

49 ibid, ad 3. Emphasis mine. 50 ibid, c. Emphasis mine. 51 Natural Right and History, 164 52 Prior, that is, in our human experience of things: “I respond that it must be said that something is said to be prior in two ways. In one way, according to its own nature. And in this way the contemplative life is prior to the active life, in as much as it is concerned with things which are prior and better. Whence also it moves and directs the active life: for superior reason, which is assigned to the activity of contemplation, is compared to inferior [reason], which is assigned to action, as is the man to the woman, who must be governed through the man, as Augustine says in Book XII of On the Trinity. “But in another way, something is prior according to us: which, namely, is prior in the way of generation. And in this way the active life is prior to the contemplative, as is obvious from our remarks above. For disposition in the way of generation precedes form, although form is prior simply and according to nature” (Summa Theologiae, IIa IIae q. 182, a. 4, c).

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In addition to manifesting the fact that Strauss’s first apprehension about St.

Thomas’s doctrine is in fact a misapprehension, his statement also instructs us about the

probable origin of that misapprehension. In bringing this to light, moreover, we will at

the same time address Strauss’s second apprehension—that the Thomistic teaching, by

insisting on “the immutable character of the fundamental propositions of natural law,”53

prevents the statesman from exercising his proper powers in situations which may require

the temporary suspension of certain “principles of the moral law, especially as formulated

in the Second Table of the Decalogue.”54

Strauss’s statement gives us an important clue because he there speaks of “natural

law or natural right”55 as though the terms were synonymous; at the beginning of that

paragraph, he had spoken of “[t]he Thomistic doctrine of natural right or, more generally

expressed, of natural law.”56 Since Strauss is hardly a man to speak carelessly, we must

take him at his word: when Thomas says natural law, he does nothing but express in a

general manner what is meant by natural right.

But what does Strauss understand by the term natural right? A second look at his

account of Aristotle’s teaching makes it very clear that he regards natural right as nothing

other than justice.

In every human conflict there exists the possibility of a just decision based on full consideration of all the circumstances, a decision demanded by the situation. Natural right consists of such decisions.57

Indeed, it was precisely for this reason that Strauss was able to justify the statesman’s

decision to suspend the usually applicable rules of natural right in certain extreme

situations.

53 Natural Right and History, 163 54 ibid 55 ibid, 164 56 ibid, 163 57 ibid, 159. Emphasis mine.

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Natural right thus understood is obviously mutable. Yet one can hardly deny that in all concrete decisions general principles are implied and presupposed. Aristotle recognized the existence of such principles, e.g. of those principles which he stated when speaking of “commutative” and “distributive” justice. Similarly, his discussion of the natural character of the city (a discussion which deals with the questions raised by anarchy and pacifism), to say nothing of his discussion of slavery, is an attempt to establish principles of right. These principles would seem to be universally valid or unchangeable. What, then, does Aristotle mean by saying that all natural right is changeable? Or why does natural right reside ultimately in concrete decisions rather than general rules? There is a meaning of justice which is not exhausted by the principles of commutative and distributive justice in particular. Prior to being the commutatively and distributively just, the just is the common good. The common good consists normally in what is required by commutative and distributive justice or by other moral principles of this kind or in what is compatible with these requirements. But the common good also comprises, of course, the mere existence, the mere survival, the mere independence, of the political community in question . . . It suffices to say that in extreme situations the normally valid rules of natural right are justly changed, or changed in accordance with natural right; the exceptions are as just as the rules. And Aristotle seems to suggest that there is not a single rule, however basic, which is not subject to exception. One could say that in all cases the common good must be preferred to the private good and that this rule suffers no exception. But this rule does not say more than that justice must be observed, and we are anxious to know what it is that is required by justice or the common good.58

Thus Strauss’s fundamental principle of natural right is the primary kind of justice which

is the common good.

58 ibid, 160-161. Emphasis mine.

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From this observation two important conclusions may be derived. The first

proceeds from the realization that Aristotle’s fundamental principle of natural right,

according to Strauss, is immutable: “One could say that in all cases the common good

must be preferred to the private good and that this rule suffers no exception. But this rule

does not say more than that justice must be observed.” Since Strauss’s Aristotle, no less

than St. Thomas, admits an immutable principle, it cannot be the case that Aquinas’s

doctrine represents an innovation insofar as his fundamental principle is immutable.

What, then, is the source of the difference?

With this question in mind we can turn to the second conclusion. Since by

natural right Strauss understands, in the first instance, political justice or the common

good; and since Strauss, as we have seen, construes Thomistic natural law to be natural

right considered generally; it therefore follows that, according to Strauss, natural law is

the same as justice in general.

But we have already seen that this is not the teaching of St. Thomas. In its natural

operation—i.e., as it is recognized by the natural moral agent, who governs his actions

according to it—natural law does not have the ratio of justice. For the first principle of

natural law is not Strauss’s “justice must be observed,” but rather, “Good must be done

and evil must be avoided.”59

Nor is this merely a difference in expression. Unlike Strauss’s Aristotle,60 St.

Thomas as philosopher does not simply identify the naturally obligatory good with

59 “bonum est faciendum et prosequendum, et malum vitandum” Summa Theologiae, Ia IIae q. 94, a. 2, c 60 We note that the following are not, properly speaking, concerned with injustice, but with baseness: “Now not every action or feeling admits of the mean. For the names of some of them automatically include baseness—for instance, spite, shamelessness, envy [among feelings], and adultery, theft, murder, among actions. For all of these and similar things are called by these names because they themselves, not their excesses or deficiencies, are base. Hence in doing these things we can never be correct, but must invariably be in error. We cannot do them well or not well—by committing adultery, for instance, with the right woman at the right time in the right way. On the contrary, it is true without qualification that to do any of them is to be in error.” “But presumably there are some things we cannot be compelled to do. Rather than do them we should suffer the most terrible consequences and accept death . . .” (Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis, IN: Hackett, 1999), 2nd ed., pp. 25, 31 [II.6. 1107 a10-18, III.1. 1110a27-28]). Such evidence as this must make one ask, I think, whether Strauss’ interpretation of Aristotle is wholly accurate.

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justice—i.e., that which is found primarily in the common good of the city. The

obligatory good, which is grasped in virtue of synderesis,61 the natural habit of practical

intellect, finds its principle not in the common good, but in human nature. The reason,

then, why Thomas’s doctrine gives less latitude to the statesman is not because it is

immutable in form, but because its content is different: that which is immutable is not

natural justice, but the natural good. Since the good is more comprehensive than political

justice, it follows necessarily that the statesman who, regardless of circumstances,

respects the good has less latitude than the one who respects justice alone.

St. Thomas’s doctrine is not only wider in scope; it is at the same time prior. This

is because its principle—human nature—is always and everywhere the principle of that

which is the principle for Strauss’s Aristotle: the common good. For man is a political

animal not merely in fact, but first of all by nature. Thus human nature, which is

common to all members of the species, is that in virtue of which man is a political

animal. The common good, on the other hand, is not that in virtue of which man is a

political animal, but is rather the reason why he is a member of this city—and not of that

city. The common good is thus a certain principle of political individuation. It is the

material principle, whereas human nature is the formal and defining principle. But form

is better than, and prior to, matter.

Furthermore, our human nature, directing us through the natural law, obliges us to

seek not only the common good of the city, but also other goods which differ from it in

genus.

Because good has the ratio of an end, but evil has the ratio of the contrary, it thus follows that all of the things to which man has a natural inclination, reason naturally apprehends as goods, and as a consequence, as works to be pursued, and [apprehends] their contraries as evils and things to be avoided. Therefore, according to the order of natural inclinations, there exists an order of the precepts of the natural law. For the first inclination present in man is to a natural good in which he has something in common with all substances: insofar, namely, as any substance

61 ibid, Ia q. 79, a. 12, c

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whatsoever seeks according to its very nature to preserve its existence. And according to this inclination, there pertains to the natural law those things through which the life of man is preserved, and the contrary is impeded. In a second way, there is in man an inclination towards certain more special goods, according to the nature which he shares in common with the rest of the animals. And according to this, those things are said to belong to the natural law “which nature teaches all animals,” as for example, the joining of man and wife, the education of children, and similar things. In a third way, there is present in man an inclination to the good which he has according to the nature of reason, which is proper to him; thus man has a natural inclination towards knowing the truth about God, and towards living in society. And for this reason, those things which relate to an inclination of this kind belong to the natural law: for example, that man avoid ignorance, that he not offend the others with whom he is supposed to dwell, and the rest of the things of this sort which so relate.62

The city, in other words, is a thing too small to satisfy the legitimate demands—or rather,

commands—of man’s soul. Preservation of one’s own life, the marriage of a man and a

woman, having and raising children, seeking the truth that lies beyond the city—these are

not merely pleasures or absences of pain, but genuine and properly human goods. The

man who seeks them according to reason, that is, according to the natural law, does not

seek goods that are private—for the private is defined in contradistinction to the public,

and therefore only in reference to the common good—but natural: goods that belong to

man as man. Because the inclinations to these goods remain natural regardless of the

circumstances, the directly willed destruction of these goods or the manipulation of the

corresponding inclinations in a manner inconsistent with their natural ends is a mutilation

of human nature, and so is always intrinsically wrong. This is why Socrates’ Kallipolis,

if it is considered as a political reality, is such a monstrosity: besides pretending an

absolute mastery over the lives of its citizens, the rulers of the city intentionally deprive

them of the natural goods of marriage and family life.

62 ibid, Ia IIae q. 94, a. 2, c

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It is in this way that we can best give an answer to the second objection which

Strauss raises in regard to St. Thomas’ natural law doctrine. It simply cannot be denied

that St. Thomas is putting a very tight restriction on even the most just of statesmen: our

initial example, in which adultery was forbidden even when it was to be committed for

the sake of freeing the country, put that beyond all doubt. The practice of Thomistic

statesmanship would certainly make a country extremely vulnerable to the wickedness of

enemies both internal and external—a weakness that would escape tyranny only with the

aid of Divine Providence.

But is political tyranny the worst of the myriad evils afflicting human nature?

That, I think, is the question that St. Thomas requires us to ask. It would seem that it

must be, if justice is the greatest natural good, and if natural law is nothing more than

natural right. But this, of course, is precisely what is in question. One of my goals in this

essay has been to show that St. Thomas’s answer does not constitute an “absorption of

natural law by theology.”63 To the contrary, it is natural reason’s adamant refusal to

allow natural law to be devoured by politics! It will be insisted by those of a more

practical (or rather, effectual) persuasion, that this is an unenforceable claim: if we do not

grant to just men the power to rule over our very nature, unjust men will seize it for

themselves. But this seems to resolve to the Thomistic version of a very old question: Is

it better to do evil or to suffer it?

63 Natural Right and History, 164

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