Origins of the Natural Law Tradition

Robert N. Wilkin, Thomas E. Davitt, John S. Marshall

• Publisher: Barakaldo Books
• Year: 2020
• eBook ISBN: 9781839744976
• Topic: Theology & Religion
• Subtopic: Religion

"CONCEPTS of a Law of Nature are as old as Western philosophy. From its inception Greek philosophy was concerned to reduce the apparent chaos and conflict of the visible world to some principle of harmony and order. The true relationship of man to the world about him was of primary concern. Philosophical solutions of these problems were found in concepts of Natural Law by which men could be brought into an ideal relationship with each other and with their environment.
"In selecting the four theories of Natural Law it was thought advisable to explore only concepts of Natural Law as a manifestation of universal order, leaving for the future the subsidiary notions of Natural Rights developed in more recent centuries. The four theories have been presented in terms of their principal expositors: Cicero, with his transcending synthesis of the Aristotelian man and the Stoic cosmology; St. Thomas Aquinas, with his Hellenized adaptation of traditional Jewish-Christian theology; Richard Hooker, who provided an intellectual bridge between the neoclassical Natural Law of Bracton, of John of Salisbury, and of Anglican theology, and the rationalist Natural Rights doctrines of the seventeenth century; and Herbert Spencer, who constructed a sort of Natural Law on the basis of the natural laws of biological existence as propounded by Charles Darwin." (From the Introduction by Arthur L. Harding)

EPILOGUE

Whether the Spencerian theory of Liberty of Contract, or any substantial part of it, remains the law of the land is not known. Certainly Cooley’s doctrine of implied limitations on governmental power continues to grow. In recent years the Fourteenth Amendment has been construed to encompass liberties of speech and press and religion to an extent which even Cooley would have thought impossible. That this has been accompanied by silence concerning any liberty of contract is perhaps most significant.

Whether or to what extent the concept of Liberty of Contract is a socially desirable one is not here determined. It seems reasonable to assume that economic progress is essential to civilization in the sense of enhancing the power of man over external nature. Certainly the reduction of social restraint upon individual economic activity is one means of achieving a measure of economic progress. What is criticized here is the transmutation of Liberty of Contract into the “unalienable,” thereby preventing or limiting any pragmatic or reasoned inquiry into its social desirability in a particular setting. What is criticized also is the grafting upon a legitimate notion of a liberty of economic activity, of Darwin’s ruthless process of natural selection. Even if Darwinism is to be applied, it has not been applied too intelligently. It must be remembered that the unhappy phrase “survival of the fittest” was Spencer’s and not Darwin’s, and that a good deal of the savagery of Social Darwinism was derived from the English Thomas Huxley and the American William Graham Sumner.{102} Later thinking upon co-operation as a means of adaptation, survival, and evolution of the species appears to have been considered not at all.

The moral of this story is simple. The classical and medieval tradition of Natural Law has given meaning to what is called Western civilization. The American people cling to a faith that there is such a Law. In this they are not alone. The cry for justice going up in many parts of the world necessarily reflects a belief that there is some standard and there is some agency by which justice may be measured and may be made effective. Any system of law or the ordering of society must take this belief into account. At the same time, however, it is an area in which one must move carefully and must avoid traps.

The Nature of Aristotle, of Cicero, of St. Thomas, and of Hooker was a good Nature, a goal of ...

Table of contents

• Title page
• TABLE OF CONTENTS
• INTRODUCTION
• CICERO AND THE LAW OF NATURE-Robert N. Wilkin
• ST. THOMAS AQUINAS AND THE NATURAL LAW-Thomas E. Davitt
• RICHARD HOOKER AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM-John S. Marshall
• THE GHOST OF HERBERT SPENCER: A DARWINIAN CONCEPT OF LAW-Arthur L. Harding
• EPILOGUE