Cicero, Aquinas, and contemporary issues in natural law theory.

Seagrave, S. Adam

THE ADVENT OF THE "NEW NATURAL LAW" THEORY in the latter half of the twentieth century has had the welcome effect of inviting St. Thomas into discussion with contemporary moral, legal, and political philosophy. With Finnis's seminal work, a broadly Thomistic natural law was rendered not only compatible with contemporary analytic philosophy and jurisprudence, but foundational with respect to the natural rights that define the liberal tradition. (1) The impact of Finnis's ambitious synthesis of characteristically modern insights with Thomistic natural law, while it has proceeded in connection with a larger movement within post-Vatican II Catholicism, has become increasingly relevant to purely secular debates within contemporary liberalism. This impact may be clearly seen in a recent attempt to construct a "natural law liberalism" which promises to include the core ideas of each tradition within a single, coherent political philosophy. (2)

Amidst the fervor in some scholarly circles to render Thomistic natural law theory relevant to a contemporary context imbued with the doctrines of liberalism and guided by the demands of analytical rigor, however, this natural law theory has itself been largely uprooted from its classical foundation. This uprooting is significant primarily because Thomistic natural law theory becomes more, rather than less, persuasive when it is viewed in light of its classical foundation. In spite of this, the interpretation of St. Thomas's so-called "Treatise on Law" (and conscious departures from it) by the new natural law theorists largely presupposes the absence of such a foundation. (3) This presupposition is, moreover, not unfounded. The two most obvious candidates for a foundational role in Thomistic natural law from classical antiquity, Aristotle and Cicero, have been widely pronounced unfit for the task. The term "natural law" is entirely absent from Aristotle's works, and the very notion appears to be largely alien to his thought. (4) Although references to the "natural law" abound in Cicero's works, this natural law appears to be little more than a transmission of Stoic ideas; (5) and while St. Thomas's natural law doctrine may indeed have Stoic resonances, the cosmology which grounds the Stoic natural law was clearly superseded in St. Thomas's work by Christian doctrines. From these considerations it would appear that St. Thomas's natural law is less the culmination of a preceding tradition than the prototype of an entirely new natural law doctrine centered upon the famous theory of the "inclinations." (6)

The failure to locate significant preChristian influences on St. Thomas's natural law has, moreover, lent substantial support to antinatural law arguments. The question posed by Strauss in Natural Right and History accurately encapsulates the starting-point for such arguments: "one would be forced to wonder ... whether the natural law as Thomas Aquinas understands it is natural law strictly speaking, that is, a law knowable to the unassisted human mind, to the human mind which is not illumined by divine revelation." (7) If Thomistic natural law is coextensive with Christian belief, it is difficult to avoid answering this question in the negative. Finnis himself is irresistibly led to this conclusion by presenting a theory of natural law independent of "the question of God's existence or nature or will;" (8) without this reference to God, the natural law is "only analogically law." (9)

From this verdict, it seems that the debate between contemporary defenders and opponents of natural law theory is in fact characterized by fundamental agreement. The question of "whether the natural law exists" has been widely closed; it is now asked "whether something natural law-like exists," "whether there is a natural and objective standard for human action," (10) or even "whether certain ideas associated with the natural law may be beneficial or useful in a contemporary liberal context." (11) The quest for a natural law strictly speaking has been all but abandoned; the "natural law" has become a mere Christian-Aristotelian idiom, (12) retained out of deference to its historical lineage but weakened in meaning by the force of modern analytical inquiry.

The intention of this paper is to reopen the question of the existence of a natural law in the strict sense, and renew the quest for its understanding, by establishing a substantial basis for Thomistic natural law theory in preChristian, classical philosophy. The establishment of such a basis lends support to the contention, of central importance for understanding St. Thomas's natural law, that a Thomistic natural law theory need not rely on specifically Christian assumptions or beliefs. The crucial step in the argument for such a basis lies in a proper appreciation of Cicero's active and distinctive role in the formation of the natural law tradition. Contrary to widely accepted interpretations of Cicero's works, Cicero's natural law is not a mere transmission of or elaboration upon Stoic ideas. While Cicero undoubtedly draws upon these ideas, a careful attentiveness to the natural law theory he presents reveals a much closer affinity to Aristotle's moral philosophy. Prior to the advent of Christianity and long before the appearance of St. Thomas's Summa, Cicero had derived a coherent and persuasive, if somewhat rudimentary, natural law theory from an Aristotelian understanding of human nature. St. Thomas's natural law is both more accurately understood and more persuasive when it is viewed as a continuation and culmination of this Ciceronian-Aristotelian natural law than as the inchoate expression of a "new" natural law.

I

Although Cicero has always been esteemed for his achievements in the field of rhetoric, it is only in recent years that he has begun to regain the scholarly appreciation which he received in the Middle Ages for his achievements in political philosophy. (13) Despite this renewed attention to Cicero as a political philosopher in his own right, Cicero's treatment of the natural law is still regarded as largely secondhand and the degree to which he presents his own natural law theory is frequently questioned.

The secondhand characterization involves some version of the "conventional wisdom that Cicero was repeating Stoic ideas" (14) in his statements regarding the natural law. Characterizing Cicero's natural law theory in this way exposes this theory to a number of difficulties. The primary difficulty involves the Stoic cosmology which serves as the foundation for the natural law, a cosmology which had been discredited by Cicero himself in his De Natura Deoram and has been widely discarded since Cicero's time. If Cicero's natural law theory is little more than a transmission of the Stoic natural law, with its accompanying dubious cosmology, Cicero's natural law cannot have been taken very seriously by the Christian St. Thomas Aquinas and cannot be persuasive in the contemporary context. Even when the Stoic characterization of Cicero's natural law is not accepted in its precise form, however, Cicero's conception of the natural law is regarded at most as a moderated or "transformed" (15) Stoicism rather than as a credible doctrine in itself which is influenced by Stoic ideas.

The plausibility of this characterization stems from Cicero's apparent reluctance to speak in his own voice in his writings. In the De Re Publica, Cicero himself speaks only through prefaces, leaving the dialogue primarily to Scipio, Laelius, and Philus. In the De Legibus, although Cicero himself appears as the primary interlocutor, he explicitly indicates that he is following the pattern set by Plato in the overall plan of his work by devoting separate but interrelated dialogues to the "Republic" and its "Laws." (16) In the first book, moreover, Cicero states that he is "following the method of the philosophers--not those of former times, but those who have built workshops, so to speak, for the production of wisdom," (17) namely, the Stoics. (18) That Cicero was conscious of his tendency to appear to "meekly ... accept the authority of others" (19) in his writings is evidenced by the reproach he puts in the mouth of Atticus at this juncture of the dialogue. Atticus anticipates the manner in which Cicero will be interpreted by scholars hundreds of years later by accusing Cicero of being "the kind of man not to follow [his] own judgment in a debate." (20) Cicero's terse reply serves as a stern warning to his readers: Non semper, Tite.

In the De Finibus, Cicero relates a series of dialogues in each of which he himself is present as a participant, although the entire work is addressed to Brutus for his approval. In each dialogue, moreover, Cicero is concerned not simply with presenting his own views, but rather with critically evaluating those of the Epicureans, Stoics, and Peripatetics. In refuting the Epicureans, Cicero takes a largely Stoic position; responding to the Stoics, he adopts a Peripatetic perspective; and in his brief criticism of the Peripatetics, Cicero again takes up the Stoic viewpoint.

The De Officiis, though not presented in dialogue form, is similarly directed to a particular addressee, in this case Cicero's own son. In this work, Cicero again makes explicit his intention to follow a particular school, the Stoics (and particularly Panaetius). The manner in which Cicero qualifies this admission is, however, worthy of note:

   I shall, therefore, follow chiefly the Stoics, not as a translator,
   but, as is my custom, I shall at my own option and discretion draw
   from those sources in such measure and in such manner as shall suit
   my purpose. (21)

This statement is relevant not only to a proper interpretation of the De Officiis, but also to an interpretation of each of Cicero's other allegedly secondhand works. By indicating that his general "custom" involves a particular kind of "following," namely one which involves the exercise of "discretion" and discrimination in a manner which suits his "purpose," Cicero reiterates and clarifies his reply to Atticus in the De Legibus. Non semper would not mean that Cicero usually follows others unreflectively and occasionally brings his own understanding to bear; rather, Cicero only repeats the opinions of others when they are relevant to the "purpose" of his own exposition.

Considering this passage and others with similar purport, many commentators have rejected the simplistic position that Cicero's statements regarding the natural law are an unreflective regurgitation of Stoic tenets. (22) The next question, however, of whether Cicero's own purpose is to present a natural law teaching (in the strict sense) is frequently answered in the negative. This answer appears in two primary forms.

The first form depicts Cicero as reflecting the Middle Platonic idea, espoused first by Antiochus of Ascalon, of a "transcendent God who was the Lawgiver as well as the Father and Maker of the world." (23) If a "transcendent God" is the immediate source of the natural law, however, this law does not qualify as strictly "natural;" (24) such a law would be properly termed "divine" and only secondarily or metaphorically "natural." According to this interpretation of Cicero's natural law as a "divine" law, Cicero anticipates the more explicit absorption of the natural law into theology which allegedly occurs in the Christian Middle Ages. (25) If Cicero's natural law is really a divine law for nature, it is not natural in the proper sense of inhering in nature. (26) Therefore, Cicero's own purpose is not to present a theory of the natural law, but rather to replace the Stoic immanent natural law with a transcendently divine or eternal one.

The second form of answer follows, to some extent, on the conclusion of the first. In the view of Strauss and others connected with him, Cicero's ultimate purpose is to present the Stoic natural law in a manner that reveals the incoherence of the natural law itself and its incompatibility with the more credible doctrine of natural right. (27) This involves an interpretation of Cicero in light of a particular criticism of natural law theory, namely that it represents the incoherent intersection of natural right and some form of divine or eternal law. Cicero, perceiving that the notion of natural law cannot be meaningfully distinguished from that of divine law, and further that human affairs do not admit of "categorical" rules but must instead be guided by the standard of natural right, (28) subtly rejects his superficial statements regarding the natural law.

In the following discussion, I propose to return to the question of whether Cicero does in fact present a genuine and coherent natural law teaching as his own. I will argue that, across the various contexts in which Cicero's statements on the subject appear, an underlying continuity emerges which is rooted in an Aristotelian understanding of nature. This understanding is developed in such a manner that law is perceived as necessarily inhering in human nature and implied by its very description.

The most frequently cited passage in Cicero's writings relating to the natural law is that given by Laelius in the third book of the De Re Publica. In responding to Philus' feigned attack on the natural basis of law, Laelius states that

   True law is right reason in agreement with nature; it is of
   universal application, unchanging and everlasting; it summons to
   duty by its commands, and averts from wrongdoing by its
   prohibitions. And it does not lay its commands or prohibitions upon
   good men in vain, though neither have any effect on the wicked. It
   is a sin to try to alter this law, nor is it allowable to attempt
   to repeal any part of it, and it is impossible to abolish it
   entirely. We cannot be freed from its obligations by senate or
   people, and we need not look outside ourselves for an expounder or
   interpreter of it. (29)

Although this portion of Laelius' statement emphasizes the "natural" character of the "true law," the latter half of his exposition introduces some elements of ambiguity:

   And there will not be different laws at Rome and at Athens, or
   different laws now and in the future, but one eternal and
   unchangeable law will be valid for all nations and all times, and
   there will be one master and ruler, that is, God, over us all, for
   he is the author of this law, its promulgator, and its enforcing
   judge. Whoever is disobedient is fleeing from himself and denying
   his human nature, and by reason of this very fact he will suffer
   the worst penalties, even if he escapes what is commonly considered
   punishment.

The mention of "God" as the "author," "promulgator," and "enforcing judge" of the true law seems to establish this law as a properly divine one. This appears, however, to contradict both the contention that "we need not look outside ourselves" to discover the true law, and the assertion that to controvert this law is not simply to disobey God, but to "deny ... human nature" which includes its own proper and effective mechanism of enforcement.

Although much is made of the fact that this statement is given by Laelius rather than Scipio or Cicero himself in his own name, this fact does not by itself indicate Cicero's dissociation from the ideas expressed therein. The relevant textual evidence in fact suggests precisely the reverse.

In a rare break in the dialogue, Cicero, the narrator of De Re Publica, describes the reception of Laelius' remarks among his interlocutors: "After these words from Laelius, all expressed their great pleasure in his remarks; but Scipio, whose delight went beyond that of the rest, was almost carried away with enthusiasm." (30) This passage mitigates, to a large extent, the interpretive difficulties associated with relating the opinions of the particular characters in the dialogue to Cicero himself. If "all" (apparently including Philus the Academic Skeptic and erstwhile opponent of the natural law) delighted in Laelius's speech, there is little opportunity to align Cicero himself with another interlocutor in opposition to Laelius. This is particularly apparent from the fact that Scipio, who is most commonly taken to be Cicero's mouthpiece in the dialogue, is "carried away with enthusiasm" at Laelius' remarks. Although Cicero could have detached himself from the general approval of Laelius' words by putting this passage in the voice of one of his characters, he instead indicates that he takes Laelius's statements seriously by momentarily interrupting the flow of the dialogue to interject his own voice.

In arguing against the Epicureans in his own voice in the De Finibus, moreover, Cicero cites Laelius' speech in the De Re Publica with approval. (31) Also speaking in his own voice in the first book of De Legibus, Cicero is primarily concerned with offering additional arguments in support of Laelius's primary contention that justice and law are rooted in nature. (32) While this evidence does not demonstrate Cicero's unqualified identification with Laelius' statements regarding the natural law, (33) it does indicate that these statements, far from being subtly rejected by Cicero, are largely consonant with his own opinions. The next task, then, becomes that of showing how Laelius' extended definition may be unpacked in a Ciceronian fashion.

The first question concerns the level of correspondence between Laelius' description of "true law," or vera lex, and the formulations which appear elsewhere in Cicero's writings as the "law of nature," (34) "universal law" (35) "supremeLaw," (36) and "the law of peoples." (37) In the first book of De Legibus, each of these alternative formulations emerges and is woven together by Cicero at the outset of his discussion. In this context Cicero expresses the opinion of the "most learned men" who define law as

   the highest reason, implanted in Nature, which commands what
   ought to be done and forbids the opposite. This reason, when
   firmly fixed and fully developed in the human mind, is Law. (38)

This opinion, which seems correct to Cicero, (39) connects law with the same "reason" and human nature which form the principles of "true law" in Laelius' description. Shortly after this definition, Cicero also connects the "highest reason" with Laelius' notion of "right reason," (40) and introduces a similar ambiguity by referring to the "God of transcendent power" who rules over the community of gods and men. (41)

In developing Laelius' description of the "true law," Cicero indicates that the various formulations noted above all refer to the same law considered with respect to diverse relations. This law is described as "true" and "supreme" in order to distinguish it from the "crowd's definition of law," that is, written decrees which are established by human beings and deal largely with matters of detail. (42) It is described as the "universal law" and the "law of peoples" since it is not "confined" to any particular state or nation as is the civil law. (43) It is most properly described as the "law of nature," or the "natural law," since its very principle of derivation lies in human nature. (44)

By deemphasizing this last relation of the law of human nature and seizing upon the element of the divine in Cicero's account, it is often argued that Cicero subtly dissociates himself from his statements in the first book of De Legibus in much the same way as is thought to occur in the De Re Publica. This argument avers that Cicero presents the natural law in this context as a kind of "noble lie" that, while useful "for political purposes," (45) is indefensible from a philosophical standpoint. (46) In this case as in the former one, the evidence of the text appears to controvert this assertion. Holton himself quotes one such passage in which Cicero states that his arguments for the natural law seem to him "usually and mostly" correct. (47) Before embarking on his discussion of the natural law, moreover, Cicero distinguishes his purpose in the De Legibus from that of the common lawyer by stating that

   while I do not consider that those who have applied themselves to
   this profession have lacked a conception of universal law, yet they
   have carried their studies of this civil law, as it is called, only
   far enough to accomplish their purpose of being useful to the
   people. Now all this amounts to little so far as learning is
   concerned, though for practical purposes it is indispensable. (48)

This passage indicates that Cicero's "purpose" in the De Legibus extends beyond what is "useful to the people" and is not merely "practical;" he desires, rather, that it will amount to something "so far as learning is concerned," that is, philosophically.

It is also important to note the role of the reference to the divine in Cicero's account in the De Legibus as well as Laelius' in the De Re Publica. In both places, this element is appended to the substance of an argument from human nature itself. Cicero's overarching concern is with "Nature's gifts to man," (49) and while some indication of the probable source of these gifts gives the discussion a certain fullness, these gifts are the proper province not of theology but of "the deepest mysteries of philosophy." (50) The "nature of Justice" and its origin in Law "must be sought for in the nature of man." (51) The divine element is presented not as a necessary premise but as a probable "theory" which may be advanced to supplement an examination of the nature of man. (52)

Although Cicero appears to require Atticus's curious admission of the divine governance of nature for his subsequent discussion of the natural law, both the manner in which Cicero makes his appeal and that in which it is admitted by his Epicurean friend supports the inessential role of the idea of a transcendent God in coming to a basic understanding of nature itself. (53) Cicero's appeal begins with the postulated existence of the "might of the immortal gods," but is subsequently diluted to more modest formulations in terms of "nature, reason, power, mind," and "will." (54) Atticus's acquiescence to this appeal, moreover, does not occur in an inexplicable fashion. The precise reason Atticus gives for accepting Cicero's claim lies in "the singing of the birds about us and the babbling of the streams," (55) that is, in an observation of natural phenomena. Therefore, in light of the fact that Cicero's discussion of the natural law does not include the existence of God as a necessary logical premise, (56) Atticus may have granted Cicero only the concept of "nature" which, in actuality, is all that Cicero really required in the first place.

It is to the concept of human nature in particular, and reason as its distinguishing feature, that we now must turn in order to show how it becomes associated with "law" in Cicero's writings. The foundation of this concept, for Cicero, lies in the specific place of human beings within a hierarchy of natures. In the beginning of the De Officiis, Cicero describes the natural characteristics and "instincts" of "every species of living creature." (57) These instincts primarily include self-preservation and reproduction, along with other instincts which are instrumental to these two. Although man possesses these animal impulses, he also exhibits the "marked difference" of "reason." (58)

This description echoes Cicero's statement in the De Legibus that "reason, which alone raises us above the level of the beasts ... is certainly common to us all." (59) In both accounts, Cicero begins by descriptively listing the proper capacities and inclinations inherent in reason. Reason's proper capacities include the ability "to draw inferences," (60) "to discuss and solve problems," (61) "perceive the causes of things," (62) and "connect and associate the present and the future." (63) The proper inclinations of reason include the impulse to form communities with other human beings, to "provide a store of things" (64) both for himself and others in his care, and to "search after truth." (65)

Cicero also follows this discussion of reason in both accounts with a similarly descriptive one of the "evil tendencies" (66) inherent in human nature. These tendencies which run counter to the good of reason are generally subsumed under the heading of "sensual pleasure." (67) Sensual pleasure, moreover, is associated with "cattle and other beasts" which are "impelled" towards its pursuit in an irrational and unreflective manner. (68)

The crucial point here is that both inclinations, those pertaining to reason and those pertaining to the sensual appetite, are natural to human beings. (69) The problem of deciding between these inclinations in correctly determining one's actions does not exist for Cicero for the simple reason that man's rational aspect is clearly superior to his animal one. Thus Cicero explicates the virtue of "propriety" and its corresponding "duty," which involves the general one to live in agreement with nature, by stating that

   the essential activity of the spirit and also nature is twofold:
   one force is appetite ... which impels a man this way and that; the
   other is reason, which teaches and explains what should be done and
   what should be left undone. The result is that reason commands,
   appetite obeys. (70)

Although this passage appears in the context of Cicero's discussion of the virtues, it is strikingly reminiscent of many formulations of the natural law throughout Cicero's writings. One is immediately reminded of Laelius's definition: "True law is right reason in agreement with nature ... it summons to duty by its commands, and averts from wrongdoing by its prohibitions." For human beings, living in agreement with nature simultaneously implies the presence of virtue and obedience to the natural law.

Cicero thus derives both the natural law and the Virtues from the single "fountain-head" of human nature. (71) This derivation initially appears to be a prime example of the "naturalistic fallacy" that, according to some, decisively refutes "the most popular image of natural law" and necessitates the project of the new natural law theorists. (72) Cicero does, in effect, build a "normative" theory of the virtues and the natural law using only a "descriptive" account of human nature. It will be remembered, however, that Cicero's descriptive account of human nature involved two types of "facts" existing in a complex relationship of hierarchical order and potential opposition. The first aspect of this relationship concerns the superiority of reason and its determinations to the blind impulses of the sensual appetite. The second expresses the power of the sensual appetite to reverse this hierarchy and influence human action in spite of reason's determinations. From reason's capacity for reflection and deliberation, as well as its impulse to direct and restrain the potentially rebellious passions, emerges the human possibility of choice.

The proper notion of law arises out of this descriptive account in two related ways. In the first way, human nature implies an inherent law from the very fact that its proper inclinations are only carried from potentiality into actuality in accordance with the contingent power of choice. (73) In other words, the "is" of human nature is in a perpetual state of potential conflict with the "is" of particular human actions. The facts of human nature include the primary inclination or general rule to act in accordance with this nature; this general rule becomes a command when it confronts the indeterminacy of choice.

The rule of acting in accordance with human nature possesses the form of a command, rather than a counsel or recommendation, since it includes the threat of punishment and the promise of reward (the proper effects of the notion of a command). (74) The punishment threatened by the command or law of nature consists primarily in the alienation of oneself from one's nature, or the failure to be in actuality what one is fundamentally and potentially, which for Cicero is the harshest of penalties. This penalty, although it appears light as a result of its remoteness from tangible experiences of physical or material harm, is necessarily more painful than these since the most fundamental desire of any natural being consists in the preservation of its nature. In this manner the command of human nature also includes the reward of virtue, that is, the eminently desirable fulfillment and completion of nature. Further, this potential conflict and implicit command are both present in the individual human being, who knows upon reflection that the fulfillment of his nature requires acting at the behest of reason. Thus the natural law derives its existence as law from the interrelated facts of human nature. It exists as a general command which may be either followed or rejected; it includes intrinsic rewards and penalties attaching to compliance or deviation; (75) and it is universally promulgated to knowing subjects.

In the second way, the natural law exists by way of its instantiation in the particular commands for action which are issued by the reason of the individual in response to particular circumstances. It is in this second way that "Law ... is the mind and reason of the prudent man, the standard by which Justice and Injustice are measured." (76) Whereas the subject of the natural law in the first way is the whole human being, in the second way its subject is the sensual appetite. Since the nature of reason, including its proper inclinations, entails directing the actions of the whole human being, it must issue particular commands to the lower appetite and enlist its support. This appetite, however, is wont to oppose reason's commands and is capable of determining human actions in spite of them. This power of opposition and resistance, as in its first and more general manifestation, eliminates the possibility of a kind of despotic determination and necessitates a rule by law. (77) Therefore in this second way the individual, by following the injunctions of the most general manifestation of natural law, issues commands to his appetite which possess the character of the natural law in the manner of particular participation or instantiation.

Absent this explicit derivation of the natural law, Cicero's account of human nature is, moreover, remarkably consonant with that provided by Aristotle. In the Physics, Aristotle defines "nature" in general both in contradistinction to luck and chance as what is "always or for the most part," (78) and as inhering in beings as the source or cause of their movement and rest. (79) The latter aspect, which constitutes the essential definition of "nature," is identified with a thing's matter in the sense of potency or necessary substratum for motion or change, and is identified with the form (that is, the soul) in the sense of actuality or fulfillment of this motion. (80) Applying this discussion of nature in general to human beings in the Ethics, Aristotle begins, as does Cicero, by placing human nature within a hierarchy of other natures. (81) Giving human nature the same proper (formal) element identified by Cicero, that of reason, Aristotle goes on to derive the notions of human happiness and virtue. In the course of this derivation, Aristotle encounters the same conflicting elements of human nature which are noted by Cicero. Aristotle divides the human soul (which is human nature in the sense of form) into rational and irrational elements, with the irrational element being "naturally opposed to the rational principle" (82) and apt to "fight against and resist that (the rational) principle." (83) Thus Aristotle already possesses the complex and dynamic account of hierarchically ordered and potentially opposed natural inclinations which is taken up by Cicero.

A doctrine of natural law is, in fact, adumbrated by Aristotle's brief mention of "unrestrained people" in this context as well as in his further discussion of restraint and unrestraint in Book 7. (84) In this latter discussion, Aristotle describes "unrestraint" with reference to "the facts of human nature." (85) These facts indicate the simultaneous presence within the individual of a "universal opinion" which either commands or forbids according to reason, and an "appetite" which resists this command. (86) In this way "a man behaves unrestrainedly under the influence (in a sense) of a rule and an opinion, and of one not contrary in itself.., to the right rule." (87) For this reason, Aristotle also states that the "lower animals are not unrestrained" precisely because "they have no universal judgment," which pertains only to reason. (88)

Aristotle's recognition and complex discussion of the phenomena of restraint and unrestraint adds an important dimension to his moral philosophy which is often overlooked by scholars who attempt to dissociate Aristotelian "natural right" from theories of natural law. It is within this discussion that Aristotle presents an analysis of human action in general as the product of or conclusion from universal premises and a particular premise. The universal premises consist in propositions expressing some practical truth, such as "dry food is good for every man" or "such and such food is dry." (89) These universal premises join to form general commands or prohibitions formulated by reason and addressed to the human being as an agent concerned with particular actions. In Aristotle's example, there may be a "universal opinion.., present in us" not only indicating that we should refrain from performing some action, but actually "forbidding" us to perform the action. (90) Since Aristotle does not indicate that his analysis of human agency in this place applies only to restrained or unrestrained persons, one may assume that the person of "practical wisdom" discussed in the book immediately preceding similarly possesses universal premises for action that have this commanding/forbidding character. The prudent man, then, is distinguished from the restrained man only in this: since his appetites or passions have been properly habituated, they do not give rise to competing premises which impede the efficacy of the "right rule."

In this analysis of human action, and that of the human soul on which it is based, Aristotle's thought seems to approach a concept of natural law. Although Aristotle did not arrive at this concept himself, Cicero shows in his writings that the notion of law is indeed implicit in an Aristotelian account of human nature. (91) In this way, then, Cicero lays the foundation for natural law theory on the soil of Aristotle's nature.

II

Armed with an understanding of the Ciceronian-Aristotelian conception of natural law, it is now (and only now) possible to provide an adequate interpretation of the culminating statement of "traditional" (for lack of a better term) natural law in the writings of St. Thomas. In his Summa Theologica, St. Thomas, like Cicero, attempts to derive the natural law from a rational encounter with objective reality and an Aristotelian account of the nature of human beings.

St. Thomas's so-called "Treatise on Law," (92) is, of course, not a proper treatise at all but rather a relatively small group of questions which occur in the middle of a much larger enterprise. The subject of the Summa is the science of "sacred doctrine," whose "chief aim.., is to teach the knowledge of God." (93) St. Thomas gives a broad outline of this carefully structured work in Question 2 of the First Part, indicating that he will treat of "God," of "the rational creature's movement towards God," and of "Christ, Who as man, is our way to God." Under the second topic of inquiry St. Thomas considers both "the last end of human life" and "those things by means of which man may advance towards the end, or stray from it." (94) The latter subject concerns "human acts," the treatment of which is first divided into "universal" and "particular" considerations. (95) Under the "universal" heading, St. Thomas plans to treat of "human acts themselves" and "their principles." (96) The discussion of the principles of human acts begins in Question 49 of the Prima Secundae, where this subject is once again divided into "intrinsic" and "extrinsic" principles. (97) We finally arrive at the questions regarding law in the treatment of the "extrinsic" principles of human acts, which are identified as the "devil" and "God." (98) The devil inclines human actions to evil through "temptations," while God inclines human actions to good through "Law" and "Grace." (99)

In surveying the overall structure and orientation of the Summa, as well as the context of the natural law discussion within the category of "extrinsic" principles of human acts, it is easy to deny the purely natural character of St. Thomas's natural law. Such a denial is parallel to the claim that by making philosophy the "handmaiden" (100) of sacred doctrine or theology, St. Thomas does violence to the proper sphere of the former in the interests of propounding the latter. (101) The notion that St. Thomas's method is not truly philosophical and that his natural law smacks more of a divine or eternal law has long enjoyed widespread currency. (102) It is not surprising, then, that St. Thomas's natural law doctrine is a particular focus of those who attempt to refute natural law theory in general by arguing that it requires faith in a legislating God (and is ipso facto not merely natural). The special aim of this discussion, therefore, will consist in tracing St. Thomas's derivation of the natural law with a watchful eye to the potential encroachment of either divine or eternal law.

It is first important to note that the questions on law are preceded not only by a treatment of God but also a thorough inquiry into the nature of human beings. This inquiry is of crucial importance for understanding the manner in which St. Thomas's natural law is "natural." Although many contemporary interpretations of St. Thomas's natural law rightly emphasize the importance of the article concerning "Whether the Natural Law Contains Several Precepts, or One Only," (103) a disproportionate focus on this article often leads to an understanding of "nature" or the "natural" which distorts St. Thomas's conception of these terms in the case of human beings.

It is in this article that St. Thomas advances his well-known theory of the "natural inclinations" which are "naturally apprehended by reason as being good." If this article is read as St. Thomas's single, definitive statement of the natural law, it seems that natural means something like prereflective, instinctual, or built-in. It seems, too, that by distinguishing the "practical reason" from "speculative reason" (104) prior to the discussion of inclinations within the article, St. Thomas means to dissociate the former from the latter and exclude the role of speculative reason or contemplative reflection in the workings of the natural law. If this reading is correct, two conclusions relevant to our purposes follow: (1) St. Thomas's natural law is not derived from the philosophical understanding of human nature which precedes it in the Summa; and (2) St. Thomas's natural law stands in contrast, rather than continuity, with the Ciceronian-Aristotelian version which does derive the principles of morality or natural law from a speculative or reflective understanding of human nature. In order to combat these conclusions and the reading on which they are based, it is necessary to discuss St. Thomas's philosophical treatment of human nature in some detail and determine the role that this treatment plays in his understanding of the natural law.

Although the subject of the First Part of the Summa is "God," St. Thomas includes in his consideration of God an account of "the procession of creatures from Him." (105) This procession occurs, moreover, in the threefold manner of "production,.... distinction," and "government." (106) Within the second heading, St. Thomas considers the distinction of corporeal and spiritual creatures; after treating each of these, he arrives at "the composite creature, corporeal and spiritual, which is man." (107) St. Thomas divides his consideration of human beings into a discussion of their "nature" and one of their "origin." While the second discussion explicitly relates the human creature to the transcendent God of theology, the discussion of man's "nature" is wholly philosophical and devoid of any theological premises. St. Thomas relies heavily in this section on "the Philosopher," Aristotle, and his account of human nature as derived from the Physics, De Anima, Posterior Analytics, and Ethics.

St. Thomas's discussion of human nature centers on a consideration of its "powers," which provides the basis for his later inquiry into the manner in which the rational creature approaches God. The powers of which St. Thomas speaks are such not in the sense of potestas (ability or might), but rather potentia (potentiality) and virtus (virtue or excellence). (108) In these senses the powers of the human soul are intrinsically ordered to operation as potentiality is ordered to actuality. (109)

Approving the classification of "the Philosopher," St. Thomas distinguishes five genera of powers in the human soul: the vegetative, sensitive, appetitive, locomotive, and intellectual. (110) In addition to their mere distinction, these kinds of powers exist in a hierarchical order which corresponds with the order among the various types of natural beings. (111) The vegetative, sensitive, and intellectual powers in fact determine distinct types of "soul" and "modes of living" which are proper to plants, animals, and human beings respectively. (112) The order among these types of soul and the corresponding modes of living arises out of the degree to which each "surpasses the operation of the corporeal nature." (113)

In determining the level of superiority of a certain type of soul to corporeal nature, St. Thomas employs Aristotle's definition of nature as the principle of motion. The proper principle of the motion of matter lies in its receptivity to an "extrinsic" impetus by which it is moved. The proper principle of motion attaching to animate beings (that is, beings with immaterial souls), on the other hand, lies in an "intrinsic" principle by which it moves itself. (114) Therefore, each type of soul exceeds materiality to the degree to which it enables self-motion. Further, since the operation of self-motion admits of degree according as it is accomplished independently of determinate material instruments, a lesser dependence on materiality corresponds to a greater degree of self-motion. The intellectual soul, which distinguishes human beings from other animals and plants, surpasses materiality to the greatest degree since it does not require any material organ as its instrument. (115) Thus human beings, insofar as they are human (that is, possess an intellectual soul), move themselves by the intrinsic principle of intellectuality.

Despite the role of intellectuality (116) in distinguishing and elevating human nature with respect to other natures, it is important to keep in mind the fact that it remains but one kind of power among five existing in a soul which is the substantial form of a body. (117) The most important consequence of the latter aspect is that all intellectual knowledge acquired by human beings occurs per viam sensus, "by way of the senses." (118) Since it is invariably necessary that human knowledge arise in this way, (119) human beings are intellectually inferior to the angels who do not require phantasms produced by the senses. (120) The former aspect further underscores the composite character of the human being by placing his intellectuality within the context of his fundamentally "animal" nature. Although the intellect raises human beings above all other animals, it does not do so to the extent of abandoning the proper characteristics attaching to lower animal natures. (121) The properly human element of man coexists with the properly animal and vegetative elements. In light of these considerations, St. Thomas states that "the human soul ... is on the confines of spiritual and corporeal creatures, and therefore the powers of both meet together in the soul." (122)

St. Thomas further distinguishes two "ends" proper to the intellect which follow on its apprehension: the "consideration of truth" and the direction to operation. (123) This difference in the application of the intellectual power results in the distinction between the "speculative" and the "practical" intellects. (124) Since these two intellects are really only accidental differences within the intellectual power itself, there is a close correspondence between the respective habits by which they are disposed to act. Both the speculative and the practical intellects must begin with indemonstrable first principles which are knowable immediately upon an intellectual encounter with being; these first principles are held by the habits of "understanding" (125) and "synderesis," (126) respectively. From these starting-points both manifestations of intellect proceed by combination to produce conclusions, which are held by the habits of "science" (127) and "prudence." (l28)

Despite the close analogy between the two manifestations of intellect, an important difference arises in connection with their relation to virtue. Virtues, defined in Aristotelian fashion as habits which dispose to the good, are divided by St. Thomas into two types: those which confer "aptness in doing good" and those which, in addition, confer "the good use" of this aptness. (129) The virtues of the speculative intellect belong to the former category, while those of the practical intellect belong to the latter. The disjunction between habit and act, to which this distinction in virtue answers, has its source in the indeterminacy of the appetite. The virtues of the practical intellect lead directly to good actions precisely because they "presuppose the rectitude of the appetite." (130) The indeterminacy of the appetite thus necessitates the cultivation of virtues by which its "rectitude" is secured.

In his Prologue to the Second Part of the Summa, St. Thomas explains that after treating primarily of God in the First Part, "it remains for us to treat of His image, that is, man, according as he too is the principle of his actions, as having free choice and control of his actions." The power of "free choice," failing under the general appetitive power, arises from the fact that "reason in contingent matters may follow opposite courses." (131) That man "has control of his actions," that is, that they are "voluntary," similarly results from the "rational appetite" by which human beings are capable of acting for an intellectually apprehended end. (132) In both discussions of the way in which human beings contain the principles of their actions within themselves, it is the indeterminacy of the practical reason (or intellect) which plays the decisive role.

A further indeterminacy in human action arises when the intellect, which is proper to human beings, confronts the other powers of the human soul which are shared in common with the animals. Since the sensitive power is also an apprehensive one (like the intellect), it gives rise to its own appetite whose object may contradict that proposed by the intellectual appetite. (133) Thus, in defending the distinction between moral and intellectual virtue from the Socratic position, (134) St. Thomas states that "the appetitive part obeys the reason, not blindly, but with a certain power of opposition." (135) It is for this reason that the "rectitude of the appetite" includes both the intellectual appetite and the sensual appetite; the former is perfected by justice and prudence, (136) while the latter is perfected by temperance and fortitude. (137)

In transitioning from his discussion of the virtues and vices to his consideration of law, St. Thomas appears to transition from internal principles of human action to external ones. This is, however, only partly true. The distinction between intrinsic and extrinsic principles in the realm of human action is not as clear as it appears at first glance, as St. Thomas himself indicates at the outset of his discussion of the subject. In treating the question of "whether there is anything voluntary in human acts," St. Thomas states that

   it is not contrary to the nature of the voluntary act that this
   intrinsic principle be caused or moved by an extrinsic principle,
   because it is not essential to the voluntary act that its intrinsic
   principle be a first principle. (138)

In other words, there is a sense in which even human beings and their actions are wholly dependent on an extrinsic principle insofar as they are dependent on the first cause of all being, that is, God. In the beginning of his discussion of law, (139) moreover, St. Thomas does not list "law" as one of the extrinsic principles with which he is concerned. The only extrinsic principles indicated are "the devil" and "God." Each of these extrinsic principles operates through certain instrumental causes; the devil through "temptations," and God through "law" and "grace." Grace, however, is earlier described as a "habit," that is, an internal principle of human action, which resides in the soul's essence. (140) It simply does not follow that because God is an extrinsic principle of human actions he may only act by means of purely extrinsic instrumental causes. There is nothing, therefore, in the structure of the Summa itself which indicates a priori whether St. Thomas's notion of law will prove to be wholly extrinsic, primarily intrinsic, or some combination of both.

This is not, however, meant to imply that the location of the natural law discussion within the framework of extrinsic principles is merely by accident or coincidence. St. Thomas enters his consideration of the natural law armed with philosophical proofs for the existence of a transcendent God who governs the entirety of His creation. This renders possible a derivation of the natural law within the context of its relation to the eternal law of God. That which is present in Cicero's derivation of the natural law in a relatively superficial and conjectural manner is thus present in a fundamental and certain manner for St. Thomas. Since St. Thomas is certain of the "coherence of the whole" (141) both by the light of faith and the testimony of reason, he views the natural law in the same manner in which he views creation as a whole, namely, "in the light of eternity." (142)

It is therefore consistent with St. Thomas's general perspective to define the natural law as the "participation of the eternal law in the rational creature." (143) This inclusion of the "eternal law" in the very definition of the natural law leads many commentators to dismiss the true "naturalness" of the latter. Upon closer examination, however, the "rational creature's participation" described by St. Thomas is in fact quite different from the divine coercion with which it is often equated.

Although St. Thomas defines law in general as something "pertaining to reason," (144) he distinguishes two ways in which this relation to reason may occur: first, "as in one that rules" and second, "by participation, as in one that is ruled." (145) The eternal law clearly pertains to reason in the first sense since it is "the very Idea of the government of things in God." (146) As the eternal law applies to creatures that do not possess intellect or reason, it has the character of law simply by virtue of the Divine Reason as an external principle. If the lawfulness of the natural law were similarly derived only from the Divine Reason associated with the eternal law, St. Thomas's treatment of it as a kind of law distinct from the eternal law would be largely inexplicable. From the definition of the natural law, however, it is clear that it attains recognition as a law by pertaining to reason in the second sense, that is, "by participation." (147) For the rational creature, that part of the eternal law which applies to him externally is internalized by the power of the intellect apprehending the order established within human nature by the Eternal Reason. This order is manifested in the "order of natural inclinations" within human beings, the discussion of which closely parallels Cicero's regarding the "instincts" pertaining to the various levels of natural being. (148) Thus the natural law is that by which "we discern what is good and what is evil" (149) rather than simply that by which our true good and perfection is externally prescribed.

This argument may also be illustrated by an analogy in the realm of the speculative reason. Suppose someone were to draw a right triangle on a sheet of paper and post this sheet on a bulletin board for all to see (or perhaps on the Google homepage). After seeing this triangle a number of times and forming an image of it in their minds, everyone would know its basic characteristics, namely, that the hypotenuse is greater than either of the other the two sides, that the right angle is wider than either of the other two, and so on. The keenest minds would go much farther than this, deducing that the right angle is equal to the sum of the other two angles, the square on the hypotenuse is equal to the sum of the squares on the other two sides, and so on. This entire body of knowledge, however, is derived from and implicit in the manner in which the triangle was originally drawn. In fact, the one who drew the triangle happened to be Euclid, who did so with a knowledge not only of its most complex attributes, but also of those of many other types of figures which may be drawn. Since the knowledge which now exists in the observers of the triangle preexisted in Euclid and was, in part, extrinsically caused by his action of drawing it, ought we to deny these observers the internal possession of this knowledge? Did Euclid infuse the theorems relating to the triangle in its observers by the mere fact of drawing it in this manner? Is it not more reasonable to concede that, while Euclid's action was an extrinsic principle of the observers' knowledge, this knowledge is now the shared possession of both Euclid and those who rationally encountered his triangle?

In addition to establishing the "lawful" character of the natural law, this discussion also illuminates the manner in which St. Thomas's natural law is truly "natural," that is, not dependent in the order of knowledge (150) on the eternal law or the Divine Reason from which the eternal law emanates. Since the eternal law is reflected in the objective order within and among created beings, including the human being, all that is required for understanding the first principles of the natural law is the intellectual procedure of induction from objective reality. (151) Since, moreover, this derivation proceeds from induction rather than demonstration, these principles are indeed per se nota and indemonstrabilia, although not in the manner in which these terms are understood by many new natural law theorists. (152)

For St. Thomas, "every knowledge of truth is a kind of reflection and participation of the eternal law," (153) and so falls within the definition of the natural law insofar as this truth directs the human being to the good of its nature. The most basic truths which are relevant for human action, such as the superiority of the intellect to the sensitive powers (corresponding to the superiority of human beings to the other animals), are apprehended by the induction of the intellect and held habitually by synderesis. Thus the fundamental precept of the natural law consists for Aquinas in the general command that "good is to be pursued and done, and evil is to be avoided." (154) St. Thomas explicates the meaning of this first precept by stating that "whatever the practical reason naturally apprehends as man's good belongs to the precepts of the natural law." (155) The "good," then, consists first and foremost in the general state of living according to one's human nature (that is, acting at the promptings of intellectual apprehension). In this way, St. Thomas's natural law also possesses the twofold and flexible character of Cicero's derivation; from the first and most basic injunction to follow reason, the more particular applications of reason also acquire the character of law by commanding the appetites of individuals involved in concrete actions.

III

By locating St. Thomas's natural law doctrine within its larger context in the Summa, that is, within a philosophy of human nature, it becomes possible to discern both the Aristotelian roots of this doctrine and the importance of Cicero as the crucial intermediary between Aristotelian moral philosophy and Thomistic natural law. If Cicero had not shown that an Aristotelian understanding of human nature was compatible with, or even implied, a theory of natural law, St. Thomas would likely have lacked the resources necessary to distinguish the natural law as a kind of law distinct from both the eternal and divine law. Thomistic natural law is, then, a developed statement of a "traditional" natural law theory which counts Cicero, and Aristotle through him, as its founding member.

It is important to note and briefly address two immediate objections to this interpretation of Thomistic natural law theory before concluding. The first contends that St. Augustine is a more obvious candidate for influence on St. Thomas's natural law than Cicero. (156) It is St. Augustine who "bookends" the question on the natural law, appearing in the sed contra of the first and last articles of Question 94; (157) Cicero, on the other hand, is not cited even once.

In answer to this objection, it must first be noted that the primary function of the sed contra in St. Thomas's method is to oppose the force of the objections with an authority sufficient to cast doubt on their cogency. While the statements of the authority usually support St. Thomas's own answer, this answer is often placed on an entirely different foundation; for example, St. Thomas often cites Scripture in his sed contra before providing a purely philosophical answer to the question at hand. The strongest influences on St. Thomas's own thought may be expected to appear in his respondeo rather than in his sed contra. Since, moreover, it is within his own answer that St. Thomas sets forth what he perceives to be the truth of the matter, specific reference to his sources becomes less necessary. Although St. Thomas does, of course, frequently provide such references in his answers, insofar as he is setting forth the truth of the matter the absence of a specific reference does not argue for the absence of any precedent for his assertions. (158) The reason for this is that the truth, in contrast to authoritative statements considered in themselves, is a common rather than a particular good. Opinions and arguments, therefore, lose their exclusive attachment to particular human beings insofar as they approach closer to the actual truth. Thus, while specific references provide clear evidence of some degree of influence, a similarity of ideas and arguments without specific reference may in fact indicate an even closer affinity to preceding thought for St. Thomas.

Further, Cicero is cited by St. Thomas both within the "Treatise on Law" (159) and, with some frequency, throughout the Prima Secundae. (160) It is clear from these citations that St. Thomas was familiar with Cicero's De Inventione, Tusculan Disputations, and De Officiis, (161) and that he regarded Cicero as a respected authority in moral and political philosophy. Question 94, then, may only be persuasively insulated from Cicero's influence with an argument from specific reference (or lack thereof) insofar as this question itself may be understood in isolation from the remainder of the questions on law and the Summa as a whole.

A second objection presses the point, briefly noted above, that this account of natural law theory remains vulnerable to the "naturalistic fallacy," or the derivation of values from facts. (162) For this reason the account given may be of interest to the historian of ideas, but cannot serve to reopen the philosophical question of the existence of a natural law in the strict sense. While a sufficient answer to this objection would necessarily extend far beyond what may be attempted here, it may be possible to sketch the outlines and direction of such an answer by briefly noting a few points of relevance.

The logical impossibility of inferring or deriving values from facts is generally traced to Hume's famous statement of the "is-ought" problem. (163) This problem, both in its original context within Hume's thought and in its various more recent manifestations, follows from a specific limitation of the powers of reason. Although reason is capable of complex deductions and abstruse philosophizing, it is incapable of performing Aristotelian induction, or the more primitive function of abstracting ideas which are at once general and true from particular sense experiences. Thus reason stands at a considerable remove from the realm of concrete reality within which particular human actions occur, and by this distance is rendered incompetent to perform its traditional function of directing toward virtue or restraining from vice. The is--ought disjunction, then, is intimately connected with Hume's thoroughgoing skepticism.

Although the new natural law theorists tend to deny such a connection, simultaneously affirming the validity of Hume's is-ought distinction and the ability of practical reason to grasp objective moral truth, this denial rests on a dubiously rigid distinction between the practical and speculative activities of reason. The strictness of this distinction both lacks a persuasive basis in the writings of St. Thomas and renders the meaning of "intelligence" or reason problematically indeterminate. It appears difficult, then, to accept the impossibility of the fact-value inference without placing a radically skeptical epistemology at its basis.

Thus, while St. Thomas's Summa Theologica remains the locus classicus for natural law theory, this theory acquires more force and persuasiveness when it is placed at the summit of a preceding tradition of thought than when it is relegated to the foothills of an emerging one. It seems that the modern transition from the traditional natural law to the new natural law may indeed have been premature; and if this is the case, what is required of current natural law theory is not the abandonment of the more traditional version but rather its further development and application to the pressing problems of contemporary society.

University of Notre Dame

(1) John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980).

(2) See Christopher Wolfe, Natural Law Liberalism (Cambridge: Cambridge University Press, 2006).

(3) John Finnis and Germain Grisez, "The Basic Principles of Natural Law: A Reply to Ralph McInerny," American Journal of Jurisprudence 26 (1981): 31.

(4) See Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 146-64; Frederick Crosson, "Religion and Natural Law," American Journal of Jurisprudence 33 (1988): 1-3; Ernest L. Fortin, "Augustine, Thomas Aquinas, and the Problem of Natural Law," Mediaevalia 4 (1978): 179-82; Wolfe, Natural Law Liberalism, 154-5; Michael Zuckert, "The Fullness of Being: Thomas Aquinas and the Modern Critique of Natural Law," The Review of Politics 69 (2007): 42. For interpretations of Aristotle that see the natural law as latent, though not yet present, in Aristotle's works, see Paul E. Sigmund, Natural Law in Political Thought (New York: University Press of America, 1971), 1-12 and Ronald P. McArthur, "The Natural Law: A Perennial Problem," American Journal o f Jurisprudence 26 (1981): 16.

(5) For the clearest expression of this interpretation, see Lloyd L. Weinreb, Natural Law and Justice (Cambridge, Mass.: Harvard University Press, 1987), 39-40; also see Strauss, Natural Right, 154; Sigmund, Natural Law, 20-5; James E. Holton, "Marcus Tullius Cicero," in History of Political Philosophy, 3rd ed., ed. Leo Strauss and Joseph Cropsey (Chicago: University of Chicago Press, 1987), 155-75; Richard A. Horsley, "The Law of Nature in Philo and Cicero," The Harvard Theological Review 71 (April 1978): 35-59; Wolfe, Natural Law Liberalism, 156-7.

(6) St. Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (New York: Benziger Bros., 1948), I-II, q. 94, a. 2; hereafter ST.

(7) Strauss, Natural Right, 163.

(8) Finnis, Natural Law, 49.

(9) Ibid., 280.

(10) These first two questions I take to be the basic concerns of the new natural law theory.

(11) This question is treated by Wolfe in Natural Law Liberalism.

(12) See Fortin's description of the natural law as a "misnomer of sorts, introduced into the tradition in somewhat accidental fashion"; Ernest L. Fortin, "The New Rights Theory and the Natural Law." Review of Politics 44 (Oct. 1982): 610.

(13) See Walter Nicgorski, "Cicero and the Rebirth of Political Philosophy," The Political Science Reviewer 8 (Fall 1978): 63-102.

(14) Horsley, "The Law of Nature," 36.

(15) Ibid., 58.

(16) Marcus Tullius Cicero, De Legibus, trans. C. W. Keyes (Cambridge, Mass.: Harvard University Press, 1970), bk. 1, [section] 15, p. 313.

(17) Ibid., 1.36, p. 337.

(18) That Cicero is referring especially to the Stoics is indicated by the passages immediately following this statement, although in these passages Cicero also asserts that the Old Academy, the Peripatetics, and the Stoics are all in essential agreement. Zeno simply "changed the terminology without altering the ideas" of the former two schools (1.38, p. 339). It appears, then, that Cicero is not following any particular school in the substance of his exposition (since they all agree on this point), but is following the Stoics manner of expressing it.

(19) Ibid., 1.36, p. 337.

(20) Ibid.

(21) Marcus Tullius Cicero, De Officiis, trans. Walter Miller (Cambridge, Mass.: Harvard University Press, 2001), bk. 1, [section] 6, p. 9 (my emphasis).

(22) See the interpretations of Strauss, Natural Right, 154; Horsley, "The Law of Nature"; Nicgorski, "Cicero's Paradoxes and His Idea of Utility," Political Theory 12 (Nov., 1984): 557-78; Holton, "Marcus Tullius Cicero"; Crosson, "Religion and Natural Law"; and Hadley Arkes, "That 'Nature Herself Has Placed in Our Ears a Power of Judging:' Some Reflections on the 'Naturalism' of Cicero," in Natural Law Theory: Contemporary Essays, ed. Robert P. George (Oxford: Oxford University Press, 1992), 245-77.

(23) Horsley, "The Law of Nature," 59.

(24) See Strauss, Natural Right; Fortin, "The New Rights Theory"; and Crosson, "Religion and Natural Law." A transcendent God may of course be the ultimate or ontologically primary source of the natural law, but the very notion of a natural law in a strict sense maintains a distinction between this law and either a "Divine Law" or an "eternal law" which is either directly promulgated by or immediately resides in God. St. Thomas maintains this distinction in the questions on law in the Summa Theologica.

(25) Horsley, "The Law of Nature," 58.

(26) This distinction is borrowed from Crosson's analysis in "Religion and Natural Law."

(27) See Strauss, Natural Right, 154; Holton, "Marcus Tullius Cicero"; see also Arkes, "Some Reflections," 274.

(28) This second form of critique of the notion of a natural law as overly rigid or "categorical" will not be addressed directly in what follows, although an answer to it is intimated by St. Thomas's simultaneous assertion of the immutability (in one sense) and flexibility (in another sense) of the natural law. Both characteristics of the natural law also appear in Cicero's writings, and in Aristotle's paradoxical statements regarding natural justice in the Nicomachean Ethics, 5.7.1134b20-1135a5.

(29) Marcus Tullius Cicero, De Re Publica, trans. C. W. Keyes (Cambridge, Mass.: Harvard University Press, 1970), bk. 3 [section] 33, p. 211.

(30) Ibid., 3.42, p. 217.

(31) Marcus Tullius Cicero, De Finibus Bonorum et Malorum, trans. H. Rackham. Loeb Classical Library (Cambridge, Mass.: Harvard University Press, 2006), bk. 2, [section] 59, p. 149.

(32) See especially 1.35, pp. 335-7.

(33) See De Legibus, 1.19, pp. 317-19, where Cicero asserts that "Law ... is the mind and reason of the prudent man, the standard by which Justice and Injustice are measured." In these passages Cicero adds an element of flexibility to the rigidity of Laelius's statements (without necessarily supplanting this element of rigidity).

(34) Cicero, De Officiis, 3.69, p. 339. De Legibus, 1.56, p. 361.

(35) De Legibus 1.14, p. 313; 1.17, p. 315.

(36) Ibid., 1.19, p. 319.

(37) De Officiis 3.69, pp. 339-41.

(38) De Legibus 1.18, p. 317.

(39) Ibid., 1.19, p. 317.

(40) Ibid., 1.23, pp. 321-3.

(41) Ibid.

(42) Ibid., 1.19, p. 319.

(43) Ibid., 1.17, p. 315.

(44) Ibid., 1.17-18, pp. 315-17.

(45) Crosson, "Religion and Natural Law," 6. See also Holton, "Cicero," 170-72.

(46) For Cicero, indeed, the fact that a certain doctrine is politically expedient is actually evidence for its theoretical truth. See Cicero's attempted reconciliation of the expedient and the morally right in Book 3 of De Officiis.

(47) Holton, "Cicero," 171.

(48) De Legibus 1.14, p. 313.

(49) De Legibus, 1.16, p. 315.

(50) Ibid.

(51) Ibid., 1.17, p. 317.

(52) Ibid., 1.24, p. 323.

(53) This "inessential role" for the transcendent God ought to be understood in an epistemological rather than an ontological sense.

(54) Ibid., 1.21, pp. 319-21.

(55) Ibid.

(56) In support of this point see also Cicero's reference to the function of "Nature, alone and unaided" in 1.27, p. 327.

(57) De Officiis 1.11, p. 13.

(58) Ibid.

(59) De Legibus, 1.30, p. 329.

(60) Ibid.

(61) Ibid.

(62) De Officiis, 1.11, p. 13.

(63) Ibid.

(64) Ibid., 1.12, p. 15.

(65) Ibid.

(66) De Legibus, 1.31, p. 331.

(67) Ibid.

(68) De Officiis 1.105, p. 107.

(69) On this point of Cicero's account of human inclinations, see Nicgorski, "Cicero's Paradoxes," 564-6.

(70) De Officiis, 1.101, p. 103. I have altered the translation of the first clause in order to include "nature," which is present in the Latin.

(71) De Legibus, 1.18, p. 317.

(72) Finnis, Natural Law, 33; Robert P. George, "Natural Law and Human Nature," in Natural Law Theory: Contemporary Essays, 32.

(73) See Cicero's derivation of "law" from the idea of "choosing" as one of the elements of its proper notion in De Legibus 1.19, p. 317.

(74) In this way, one may, as Cicero does, establish the existence of a law or command from the existence of its proper effects (effects that could follow only from law or command). This is a kind of effect-to-cause (quia) argument which Fortin, for example, does not allow for in his discussion of the lawfulness of the natural law in "The New Rights Theory."

(75) The distinction between "intrinsic" and "externally imposed" penalties and rewards is centrally important to an understanding of the natural law. Although punishments and rewards are indeed the proper effects of command and law, these need not be imposed by some external "observer," as Crosson, Fortin, and many others would have it. If a law commands some good, disobedience of this law necessarily entails the deprivation of good. This penalty is an internal consequence of the act of disobedience itself, and not something appended to disobedience after the fact.

(76) Cicero, De Legibus, 1.19, pp. 317-19. I have replaced "intelligent" in the translation with "prudent" to render the Latin more accurately.

(77) For comparison see Aristotle's statement in the Politics that "the intellect rules the appetites with a constitutional and royal rule," in The Basic Works of Aristotle, ed. Richard McKeon (New York: Random House, 1941), 1.5.1254b4.

(78) Aristotle, Physics, in The Basic Works of Aristotle, 2.4.195b30 9.200b10.

(79) Ibid., 2.1.192b22.

(80) Ibid., 2.1.193a1-193b22.

(81) Aristotle, Nicomachean Ethics, in The Basic Works of Aristotle, 1.7.1097b25-1098a5.

(82) While Aristotle and Cicero would say "naturally opposed," St. Thomas would describe this frequent opposition as an effect of the Fall, and therefore the opposition would be "natural" in the sense of fallen nature, but not natural in the sense of original nature.

(83) Aristotle, Ethics, 1.13.1102b13-30.

(84) Ibid., 1102b21.

(85) Ibid., 7. 3.1147a 25.

(86) Ibid., 1147a30-5.

(87) Ibid., 1147a35-1147b2.

(88) Ibid., 1147b4-6.

(89) Ibid., 1147a5-7.

(90) Ibid., 1147a32. Although Aristotle's term here (koluousa) may be translated less strongly as "checking" or "preventing," it is most often, and not by an unwarranted license, translated as "forbidding."

(91) The question of whether Cicero read Aristotle's works himself, or was merely familiar with the thought of his followers in the Peripatetic school, is not of crucial importance to this particular argument (assuming a sufficient amount of continuity between the two sources). However, it seems that Cicero did read Aristotle's works himself from De Finibus 3.10, p. 227.

(92) St. Thomas, ST, I-II, qq. 90-108.

(93) Ibid., I-II, prooemium.

(94) Ibid., I-II, q. 1, prooemium.

(95) Ibid., q. 6, prooemium.

(96) Ibid.

(97) Ibid., q. 49, prooemium.

(98) Ibid., q. 90, prooemium.

(99) Ibid.

(100) Ibid., I, q. l, a. 5, ad. 2.

(101) See Fortin's translation of ancilla as "slave" in "St. Thomas Aquinas," in History of Political Philosophy, 271. While "slave" is a possible translation of ancilla, the connotations of this translation run counter to the spirit of St. Thomas's use of philosophy throughout the ST.

(102) See, for example, Fortin, "St. Thomas Aquinas," as well as "Thomas Aquinas as a Political Thinker," Perspectives on Political Science 26 (Spring, 1997): 92-7; see also Crosson, "Religion and Natural Law," 8-13.

(103) ST, I-II, q. 94, a. 2.

(104) Although the extent to which St. Thomas means to distinguish the two applications of reason even in this article is open to question, since the distinction occurs within a discussion of the similar or analogous character of the two types of reasoning.

(105) St. Thomas, ST, I, q. 2, prooemium.

(106) Ibid., q. 44, prooemium.

(107) Ibid., also q. 75, prooemium.

(108) See ST, I, q. 75 and q. 77, prooemium.

(109) Ibid., q.77, a.3.

(110) Ibid., q. 78, a.1.

(111) Ibid.; see also I. q. 77, a. 4. Here we find a distinct point of similarity with the accounts of Aristotle and Cicero.

(112) Ibid., q. 78, a.1; see also I, q. 18, a. 3.

(113) Ibid., q. 78, a. 1.

(114) Ibid.

(115) Ibid. While the intellectual soul does not require any material organ as its instrument, this does not deny the necessity of the material sense organs to the operation of the intellect since all knowledge comes per viam sensus.

(116) St. Thomas's intellectus is a close equivalent to Cicero's ratio and Aristotle's logos in relation to a conception of human nature.

(117) St. Thomas, ST, I, q. 75, a. 5 and I, q. 76, a. 1.

(118) Ibid., q. 76, a. 5.

(119) At least while in the natural state. See Ibid., q. 89, aa. 1-2.

(120) Ibid., q. 85.1; also I, q. 79, a. 2.

(121) For an interesting comparison, see Cicero's criticism of the Stoic position in book 4 of De Finibus.

(122) St. Thomas, ST, I, q. 77, a. 2.

(123) Ibid., q. 79, aa. 11-12.

(124) Ibid.

(125) Ibid., I-II, q. 57, a. 2.

(126) Ibid., I, q. 79, a. 12. St. Thomas's term "synderesis" is normally left untranslated due to the lack of a sufficiently precise English equivalent. Although it is commonly understood in a loose manner as "conscience," it cannot be translated as conscience since St. Thomas speaks of conscientia in the next article. Joseph Cardinal Ratzinger (now Pope Benedict XVI) interestingly proposed "translating" synderesis with the Greek word anamnesis in his paper "Conscience and Truth" (presented at the 10th Workshop for Bishops, February 1991, in Dallas, Texas. See http://ewtn.com/library/CURIA/RATZCONS.HTM).

(127) St. Thomas, ST, I-II, q. 57, a. 2.

(128) Ibid., aa. 4-5.

(129) Ibid., a. 1.

(130) Ibid., a. 4.

(131) Ibid., I, q. 83, a. 1.

(132) Ibid., I-II, q. 6, a. 1.

(133) Ibid., I, q. 80, a. 1.

(134) At least as interpreted by Aristotle in the Ethics, 6.13.1144b19.

(135) St. Thomas, ST, I-II, q. 58, a. 2. Note that this is essentially a paraphrase of Aristotle's description of this situation in the Ethics.

(136) See Ibid., q. 61, a. 1.

(137) Ibid., a. 2.

(138) Ibid., q. 6, a. 1, ad. 1.

(139) Ibid., q. 90, prooemium.

(140) Ibid., q. 50, a. 2.

(141) James V. Schall, "The Uniqueness of the Political Philosophy of Thomas Aquinas," Perspectives on Political Science 26 (Spring, 1997): 89.

(142) Fortin, "Thomas Aquinas as a Political Thinker," 92.

(143) St. Thomas, ST, I-II, q. 91, a. 2.

(144) St. Thomas, ST, I-II, q. 90, a. 1.

(145) Ibid., a. 3, ad. 1.

(146) Ibid., q. 91, a. 1.

(147) See Ibid., a. 2, ad. 3.

(148) St. Thomas's discussion occurs in ST, I-II, q. 91, a. 2 and in I-II, q. 94, a. 2. Cicero's similar discussion occurs in the De Officiis, beginning in 1.11, p. 13 (see my p. 503).

(149) St. Thomas, ST, I-II, q. 9, a. 2 (my emphasis).

(150) At this point the distinction Finnis draws between the "epistemological" and "ontological" orders, which is present both throughout the ST and in Aristotle's Physics, becomes relevant.

(151) See St. Thomas, ST, I-II, q. 93, a. 2.

(152) The understanding of indemonstrable principles by the new natural law theorists does not include any positive explanation, such as that provided by the process of induction, but only the negative assertion of indemonstrability.

(153) St. Thomas, ST, I-II, q. 93, a. 2.

(154) Ibid., q. 94, a. 2.

(155) Ibid.

(156) This objection is drawn from Fortin, "The Problem of Natural Law," 191-9, and Mary Keys, Aquinas, Aristotle, and the Promise of the Common Good (Cambridge: Cambridge University Press, 2006), 102-10. Although Keys argues here for the "newness of Aquinas's moral foundation" rather than the strength of St. Augustine's influence, the form of argument utilized would favor St. Augustine rather than Cicero as an influence on St. Thomas's natural law doctrine.

(157) Noted in Keys, Promise of the Common Good, 108.

(158) See Keys's argument in Promise of the Common Good, 107-10.

(159) St. Thomas, ST, I-II, q. 91, a. 3; I-II, q. 95, a. 3, obj. 3; I-II, q. 99, a. 5, ad. 1.

(160) For an index of these citations see St. Thomas Aquinas, Basic Writings of Saint Thomas Aquinas, ed. Anton C. Pegis (New York: Random House, 1945), 1164.

(161) St. Thomas was, of course, also familiar with portions of Cicero's other works through St. Augustine's writings.

(162) See Finnis, Natural Law, 33 and George, "Natural Law and Human Nature," 32.

(163) David Hume, A Treatise of Human Nature (Baltimore, Md: Penguin Books, 1969), bk. 3, part 1, [section] 1.

Correspondence to: 217 O'Shaughnessy Hall, Department of Political Science, Notre Dame, IN 46556.