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Early Modern
In contemporary parlance, “natural
law” most commonly refers to a core
doctrine of the Catholic Church and
its educational institutions, according
to which God has imbued nature,
including human nature, with certain
fundamental values or purposes
which humanity can understand and
which are consonant with the values
taught by the Christian revelation.
God is awesome, so he made you
awesome, it is better to not to forget
to be awesome
Natural law:
the “new” natural law (Protestantism)
The idea of natural law embodied in Rerum Novarum assumes that there is
a universal law to which people of all races, classes, cultures, and religions
have access by their natural reason. Natural law thus serves as a bridge
category on ethical and social questions between church and world,
between those with a priori commitment to sacred Scripture and the
Christian creed and those outside the community of faith.
Modern Protestantism
Protestant
states where the “new” natural law tended to converge with positive civil law.
In fact, this idea of a “higher” natural law has been one of the major stumbling
blocks for our understanding of significant thinkers of the period in question.
Natural law fall in Protestants theology
One might plausibly imagine that the reason lies deeply embedded in the
Reformation theology of Martin Luther and to other thinkers and historians
The church needs to respect the common search for justice and law and to
promote cooperation between Christians and non-Christians in all spheres of
public life. Nonetheless, even with such half-hearted concessions to natural
law, it seems clear that these Protestant theologians could not make
significant contributions to its renewal and furtherance in society.
Natural law also lacks the eschatological perspective that relegates all orders
of life to provisional status, always ambiguous and incomplete, moving along
in history in the realm of contingency and novelty.
The Great 13th Century
Philosopher Thomas Aquinas
ITALIAN
CHRISTIAN MONK
We want to be right
The formation of early modern natural
law
Modern developments in economics, politics and religion all had a formative
influence on natural law theories. The growth of domestic trade between
country and city, of European trade and, most dramatically, of transoceanic
trade and colonialism all required an ever greater ability to deal with other
people outside one’s cultural, moral and, often, political and religious
community who yet had status as personal agents.
By these and similar means, thinkers tried to assemble a body of law that could
be said to belong to humanity as such and which might be substantial enough
to provide guidance in solving the problems in economic, political, international
and religious matters that we indicated earlier. However, these ambitions were
of course not philosophically or theologically neutral, and Protestant natural law
was in fact characterized by quite fundamental divisions that were fought over
with considerable vehemence
Vehemence (showing a strong feeling)
Hugo Grotius and Thomas Hobbes
Hugo Grotius
The earliest such attempt of real consequence was that of the Dutch humanist
scholar and lawyer
posited the idea that any form of social interchange can be understood in
contractual terms, contracts being understood as the bargaining of rights,
and rights as natural properties (or their derivatives) of each person.
The most extreme case of such supposedly contractual relations was that
of slavery, in which the basic right to liberty would have been exchanged
for some other good, such as being left alive, given sustenance, offered
protection, etc.
In other words, the moral openness of the subjective rights idea was
curtailed by the traditional idea (neo-stoic or scholastic) of a moral law of
justice to which we are obligated simply through our rational insight
(though the interpretation is disputed).
Thomas Hobbes
Hobbes maintained (at least in the final statement of his political philosophy,
Leviathan, Hobbes 1991/1651) that humanity was universally characterized by
limitless passions, thus potentially laying claim to, o asserting rights to, anything
and everything.
Only the artifice of government and positive law could prevent the state of
natural conflict by curbing our limitless natural rights, and the law of nature was
a rule of prudence arising from the rational insight that it was necessary to lay
down all our rights (except that to self-defense when directly threatened on our
life) in order to achieve a sociable life enforced by an absolute sovereign.
Hobbes tried to solve the problem of obligation by modern political means, in
contrast to Grotius’s reliance on moral intuition. According to Hobbes, natural
law was to be made obligatory, not by God, but by the will of the political
sovereign.
Bellum omnium contra omnes “WAR AGAINST ALL” which he describes the
natural state humankind would be in, where it not for political community
Baruch Spinoza and Richard
Cumberland
Baruch Spinoza
the Jewish-Dutch Baruch Spinoza (1632–77)
one central Hobbesian theme to such an extent that he is rarely counted
as a natural lawyer (1989/1670)
Spinoza dispensed with the idea of a divine will in the ordinary meaning
and explained the laws for human behavior as the scientific “laws” of
physics and psychology that bind the world together.
This “scientific” ambition was also meant to provide a basis for ethics that
was beyond traditional religion and which thus was immune to its
confessional divisions, a tolerationist standpoint of particular relevance to
Spinoza’s own situation and to Dutch society in general.
Richard Cumberland
15 July 131 or 32 – 9 October 1718 was an English philosopher, and a Bishop
of Peterborough from 1691 - 1672
as a system in which every part in some way was connected with every other
part, Cumberland sought to show that the good of each individual person is
bound up with that of the whole of the human community, so that sociability is
a natural duty.
In other words, in this rights tradition, which often refers back to Grotius, we end up with a
fundamental ambiguity between right as a sphere of moral freedom and right as morally
rightful (or obligatory) action. Since rights were the common basis for contractarian theories
of social relations, including civil society and sovereignty, this ambiguity had wide-ranging
implications. At one extreme was the notion that society was an artificial construction by
individuals trading in their subjective rights or liberties; at the other, the view of society as part
of the implementation of a naturally given moral vision for humanity at large. The rights
tradition from Barbeyrac, through Hutcheson and Burlamaqui, to the American revolutionary
thinkers (e.g., James Madison) and beyond was closer to the latter extreme, and this calls
into question its continuity with modern secular ideas of human rights.
Separation of Church and state
In the mid-18th century, Paris became the center of an explosion of
philosophic and scientific activity challenging traditional doctrines and
dogmas. The philosophic movement was led by Voltaire and Jean-Jacques
Rousseau, who argued for a society based upon reason rather than faith
and Catholic doctrine, for a new civil order based on natural law, and for
science based on experiments and observation. The political
philosopher Montesquieu introduced the idea of a separation of powers in
a government, a concept which was enthusiastically adopted by the
authors of the United States Constitution. While the Philosophes of the
French Enlightenment were not revolutionaries and many were members of
the nobility, their ideas played an important part in undermining the
legitimacy of the Old Regime and shaping the French Revolution.