It is the part of prudence in defending anything or anyone to be clear about the identity of the defendant. Amphiboly and equivocity are both the glory and the bane of language: the glory in that they are an inexhaustible source of puns and wordplay; the bane in that they generate enormous quantities of argumentation which amount to little more than the exchange of paper money. A workable example of amphiboly is: “Nothing is too good for my mother-in-law” or: “No parking by police order.” As for equivocity: “The boy stood on the burning deck” has a different valence at a bridge game than it would have at sea, as: “Magic Johnson went to the ball” would mean a different thing in the NBA playoffs than it would with regard to the Darktown Strutters.

Perhaps pertinent is the story of the Irish widow who consulted her priest about the burial of the deceased. “And was he a good Catholic, Mrs. Murphy?” “That he was, Father, Mass every Sunday and communion once a month.” “Confession?” “He never missed his Easter duty.” “And did he belong to any good organization now?” “He belonged to the Holy Name Society, Father, and he never missed parish bingo.” “Ah. But did he belong to any subversive organizations?” “Subversive organizations, Father?’’ “Yes. Organizations like the Ku Klux Klan.” “And what would they be, Father?” “You don’t know what the Ku Klux Klan is?” “I don’t, Father.” “Well, they’re those devils under the sheets.” “Ah, that he was, Father. That he was.” I want to make a case for natural law, but I am not prepared to defend any and every thing that might have been gathered under that phrase. There is no need to note that there is a long and varied tradition of natural law and that proponents of it have been known to disagree with one another. My defense of the natural law will be one with my statement of it and it is the version I give that I wish to defend. My task is not to handle misgivings about Pufendorf or Gratian; I do not identify myself as the surrogate of John Finnis or Germain Grisez. My antecedents, so to say, are Aristotle and Aquinas, but I do not propose to regale anyone with an historical disquisition. If there is room for natural law in present day discussions, it should be articulated in terms of the problematic of the day. This is what I shall try to do. 

Early, late, and in between, discussions of natural law reveal the desire to say things about the positive law, the bills and edicts and guidelines which emanate from the lords temporal of the realm. It is clear that the analogy goes from our concept of the laws men make to some underlying considerations which may confirm or call into question the deeds of legislators. Needless to say, I do not refer to Fanny Fox or other centerfold cuties whose lobby is the boudoir, but to a set of criteria enabling one to assess legislation and the courts. It would not be too much to say that natural law in its many forms is a species of philosophy of law in the usual sense. In such a perspective, the products of our legislators are viewed as one with the moral task of mankind, but the moral task seen in its public or political dimension. 

Natural law, in the tradition in which I stand, has to do with the principles of morality, both personal and public, with the ethical as well as the political, but I shall give more stress to the ethical, or personal, implications of it than to the political. 

There are two major obstacles standing in the way of natural law in my sense and both of them are stated as fallacies which natural law commits. They are different but related. One, the more recent, is explicitly called the Naturalistic Fallacy, and it is a variation on an earlier demur of Hume’s. Hume, you remember, professed to be surprised to find that his fellows, after making a number of statements in which the verb is governed discourse, suddenly and seemingly without logical warrant, began to employ the gerundive, ought. The implication was that some leap had been made from simple, declarative, factual statements to statements telling us what we should or ought to do. Whence came this ought or should? Is it the business of “isness” to generate such exhortations? 

Scholars have wrangled over the question as to whether or not this observation of Hume’s was meant to be a deep-seated objection, but that is a common problem with the writings of a skeptic. Hume roiled the waters and that was enough to prompt the cleavage between fact and value, between is and ought. The relevance of this for natural law theory is clear enough. If there is a general prohibition against passing from observations about the way things are, including ourselves, to what we ought to do, then natural law, with its appeal to the nature of the human agent as the basis for claims as to what the human agent ought to do, is in deep trouble. 

More recently, in G. E. Moore’s Principia Ethica, published in 1903, the Naturalistic Fallacy was bequeathed to moral philosophers as something with which they must deal. Moore was concerned with our warrant for calling something good. That warrant, he argued, cannot be found in any of the characteristics, the natural properties, of the thing called good. If I say “Guinness ale is good for you” this may seem to be grounded in the fact that Guinness has a delightful bouquet and brings about a synaptic effect conducive to Irish good fellowship. Moore’s point was the seemingly precious one that “good” cannot mean “has a delightful bouquet and brings about a synaptic effect conducive to Irish good fellowship” since then “good” could always be replaced by its meaning and “Guinness is good” can be rendered as “Guinness has a delightful bouquet and brings about a synaptic effect conducive to Irish good fellowship” and that in turn reduces to Guinness is Guinness. 

But, to say of a thing that it is good, does not seem to be equivalent to saying that it is what it is. You may not be surprised to learn that philosophers, Moore among them, were impressed by this analysis and that there then followed a proliferation of theories of the meaning of “good” put forward on the assumption that calling something good had to be doing something different from referring to the natural properties of the thing called good. Intuitionism, emotivism and prescriptivism and other lesser theoretical brethren were soon upon the moral philosopher’s menu. The divorce of values from facts seemed complete. 

One of the ways out of this for those who found it bizarre so to separate our evaluations of the world from the world we evaluate was to observe that “good” is an attributive not a predicative adjective. As Moore himself said, to say of something that it is good is not like saying that it is yellow. Others pointed out that it is better to think of the ascription of goodness in terms of “a good X” rather than “X is good.” If I speak of a good so-and-so, I have to know whereof I speak in order to understand the meaning of the phrase. Thus, to speak of a good knife or a good golfer or a good teller, on and on, is intelligible just to the degree that we know what the function of a knife or a golfer or a teller is. If the function of a butcher knife is to cut meat, we have a built-in criteria for deciding whether it is a good one, namely, for deciding whether it performs its function well. Peter Geach and Bernard Williams are responsible for this homely reminder and, in making it, they were aware that they were in effect returning the analysis of evaluations to an Aristotelian setting. 

How better improve our minds than to recall the fundamental analysis of human action Aristotle gives us at the outset of his Nicomachean Ethics, particularly when this leads us on to the conception of natural law I wish to commend and defend? Aristotle, as you recall and as is his wont, begins with a glittering generalization. Every human act is undertaken with an eye to some end. But the end has the nature of the good. Thus, every human act aims at some good. A somewhat unsettling consequence seemingly follows from this claim. If the agent is called good because he does the good and if every agent aims at the good, it seems that we are committed to saying that every human is good just insofar as he is a human agent. Not a very promising beginning for a treatise on moral philosophy, an undertaking which ostensibly wishes to distinguish good from evil. 

Let us take a case. You join a colleague in the faculty club at table and observe that there is a bowl filled with carpet tacks before him. Over the carpet tacks he proceeds to pour milk and on them he sprinkles sugar. As he brings a spoonful toward his mouth, you stay his hand. “Why,” you ask, in those deferential tones we reserve for one who has grown dumber by degrees, “why are you eating carpet tacks?” He replies that he has been told that there is not enough iron in his diet. Your grip on his wrist tightens as you tell him that this is not the way to go about it. What he thinks is good for his health is really detrimental to it. You may go on to sketch the digestive tract on a napkin and to speak of internal hemorrhaging. Your point is that what he thought to be good is not really good for him, given the nature of carpet tacks, the digestive tract and human health. 

Now out of this distinction between real and apparent goods you can, in your capacity as tacks assessor, solve in a quince the Humean conundrum about is and ought. If one’s aim is to preserve one’s health and if carpet tacks when eaten are detrimental to health, then one ought not eat carpet tacks. Anyone who thinks that transition is a fallacy needs, as Aristotle says of the person who asks whether he should honor his parents, punishment, not instruction. So much for the first obstacle in the path of a statement of natural law. 

But what of the other alleged fallacy, the naturalistic one framed by Moore? I have suggested that the recognition that good is an attributive, not a predicative, adjective is the way out of the woods. But is it? Bernard Williams, in his instructive little book, Morality, having followed Geach’s lead, concludes that, while we can recognize any number of functions and roles a human can perform—being a golfer, a teller, a trout fisher, an after dinner speaker, etc.—and accordingly have criteria for assessing whether the function is performed well or not, we must despair of the claim that man, the human agent, as such has a function. If man had a function, we could proceed as we do with other roles. But does man have a function? Is there a specifically human role? Williams, in genuine sorrow, answers these questions in the negative. 

Happily enough, these questions are precisely the ones we encounter in the Nicomachean Ethics, but there they are answered in the affirmative. How does Aristotle go about this? Well, like this: There are any number of activities which are truly ascribed to human agents but which are not ascribed to them as human agents. I strive to preserve myself in existence, but what does not? I digest and grow, I feel pleasure and pain, but any number of things other than human agents do the same. If I truly do these things I am not alone in doing them nor are they confined to others like myself. Is there some activity which is truly ascribed to man and only to man? If there is some such activity, peculiar, proper, to human agents, that will be their function. 

You know what the classical, the Greek, the Aristotelian answer is. Conscious, deliberative, responsible, rational activity—that is what is peculiar to men. And, as in the Case of functions generally, all we need do to assess the function is to ask: is it being done well or not? To perform a function well gives us the excellence, the arete, the virtue, of the function. The human agent who performs his specific or peculiar function well is a good human person. 

What could be simpler? Then again: what could be more complex? Williams, in an uncharacteristic lapse, notices that there are lots of activities which are peculiar to men which are cause for lament. Only humans befoul the environment, rob banks, vote Democratic in the present dispensation, abandon allies, etc. The lapse, of course, consists in thinking that any performance of the function is taken to be a good performance. But what are the criteria for performing the characteristic human activity well? That, clearly, is the crux of the matter. And that is what brings us to the concept of natural law I wish to defend. 

Thomas Aquinas notices this about the list of activities which, while truly ascribed to man, are not peculiar to him: While it makes some kind of sense to say that anything and everything strives to preserve itself in existence, I too am possessed of this drive. Camus said that the first philosophical question is: should I or should I not commit suicide? Any other question presupposes an affirmative answer to that one. But surely it is not a matter of my decision that existence is good, that health is good, and so on. These are givens. So too I did not decide to be this poor Swiftian forked animal. Gender is a given and so too is the impulse toward sexual congress, procreation, having a family. So too is living with others. Contract theory is a useful fiction, but I am born into society as well. I do not choose to live with others; without them I would not have been conceived, without them I would not have survived. These instincts or impulses reveal goods that are given and are not chosen. But they are shared goods, not peculiar to human beings. Nonetheless, they are components of the human good. What makes them human is that I undertake actions of an answerable, responsible, reasonable sort which must take into account these given goods. What is peculiar to the human agent, and not a matter of choice, is to act reasonably or accountably. 

The natural law precepts we find adumbrated in the Summa theologiae, IaIIae, q. 94, a. 2, are articulations of an overriding maxim: Bonum est faciendum et prosequendum et malum vitandum: the good is to be done and pursued and evil avoided. The shared aims of shared natural impulses reveal to us goods to be sought and evils to be avoided and the human mode is that these goods be pursued reasonably, responsibly, in such a way that we can respond to the question: Why did you do that? We should so act in preserving ourselves in existence that the other goods incumbent on us are not overridden or destroyed. The human task is an orchestration of acts undertaken with respect to the given goods which make up the human good such that none of them is simply ignored or overridden. 

The drive toward truth, like that toward a reasonable organization of the given fact that we are born into a society—man is by nature a political animal—and the drive toward procreation and self-preservation, must be responded to in such a way that each is recognized as having a claim on us. The natural law in its most minimal form demands that we pursue these goods reasonably. 

The tradition of Cardinal Virtues expresses great categories of the human good. The virtue of temperance incorporates the recognition that we are not simply propelled towards objects which promise pleasure, but, sensing their attraction, move ourselves toward them—or avoid them—in a responsible conscious manner. Kierkegaard’s aesthete, who is a species of hedonist, is said by the great Dane to be living a life of despair. Why? Because he would like to engage in the mindless pursuit of pleasure but must nonetheless put his mind to precisely that. To pursue pleasure with an eye to the consequences of the activity as well as to the relation of this pursuit to the other goods that have a claim upon us is the appropriate human mode. A bitch in heat, on the other hand, is propelled toward satisfaction. Similar things can be said of courage and prudence and justice. 

Aristotle held that we deliberate about means, not ends, but I think it can be said that the version of natural law we find in Aquinas is a recognition of the comprehensive good or fulfillment of the kind of agent we are. Principles like: be temperate, be courageous, be prudent, be just, exhort us to pursue the components of our given good. We are, of course, free to direct our actions to our end or to fail to do so. The claim of natural law is that we are not free to make what is not our good our good. Milton’s Satan may say, “Evil, be thou my good,” but he cannot make it so. It thus emerges that the principles of natural law provide us with a moral absolutism. There are no occasions when intemperance or cowardice or imprudence or injustice can fail to be the good or fulfillment of the kind of agent we are. That is what is meant by saying that there are no exceptions to natural law principles and that thus these principles are absolute. 

What is not always recognized is that this threshold absolutism, so to say, is the basis for a creative relativism. Traditionally, a distinction has usually been drawn between positive and negative precepts. There are no exceptions to the precept: Do not murder. That hardly makes the moral task an easy one. For one thing, I have to be able to identify an instance of taking the life of another as unjustified, as murder, and it is quite easy to construct examples where this is a difficult matter indeed. But once the taking of a life is identified as an act of murder, it is clear without further ado that it must not be done. Such difficulties in the application of a negative precept do not of course relativize the precept. Things go somewhat differently when it is a question of positive or affirmative precepts. 

The components of our comprehensive fulfillment or good, of our ultimate end, picked out by the principles which exhort us to practice the cardinal virtues, put before us an open ideal of human conduct. Who can say in advance what the ideals of temperance and courage and prudence and justice will demand of us in particular and shifting circumstances? There is an unpredictability, an openness, an inexhaustibility, in the moral ideal enshrined in the principles of natural law which calls on the creative generosity of the human agent. The recognition of the constituents of our fulfillment enables us easily to formulate negative precepts which forbid actions which are destructive of our fulfillment. Positive precepts, on the other hand, are so to say less constraining and indicate the quasi-infinite variety and individual permutations of good and fulfilling human actions. 

Principles are starting points, not the end of the story; that is why it would be wrong to regard natural law, in the version of it I am setting forth, as a call to uniformity, as if taking it seriously would lead to the homogenization of human action. It has been said that there is a sad sameness in evil whereas the modes of goodness are infinite. Permit me to illustrate this with reference to the Christian vocation. 

There is for believers a common Christian calling and, theologians apart, we can easily say what conduct is incompatible with that idea. Christ summed up the law and the prophets in two principles: Love God with your whole heart and love your neighbor as yourself. Needless to say, he also articulated many ways in which these principles are more specifically realized. He did say—again, pace the theologians—do not commit adultery, and there are no exceptions to that. But when we think of the positive articulations of the two great laws of the Christian dispensation, could we possibly see them as calls to uniformity? When I was a child in school the nuns told us that there is a unique and individual response to that common vocation that God expects of each of us and, if we fail to achieve it, something will be lacking in the ultimate sum. Think of how different from one another the saints of the Christian calendar are, an Ignatius, a Francis, a Dominic, a Mother Seton, a Catherine of Siena, John of the Cross, on and on. Could anyone see a dull sameness there? 

The moral ideal is like that and that is the appeal of the common moral task. The conception of natural law I espouse has it that, as one moves away from the great common principles, there is an infinite variety of ways to be just, courageous, temperate and the like. Human dignity resides precisely in the fact that we are to find our own way to the fulfillment our nature suggests. There are lots of ways to be good. Moral failure bores us with its sameness. 

My readers must have heard the story of the Louisiana pastor whose flock was much given to breaches of the sixth and ninth commandments. Hour after hour he sat in his confessional and listened to penitents murmur that they had committed fornication and adultery. Finally, weary with it all, he announced from the pulpit that he would have no more of it. From now on they were to confess in a coded way. Rather than admitting to adultery they were to employ the euphemism, I fell into the bayou, once, twice, however many times, since my previous confession. And so it went. And then one day he was assigned an assistant who went into his confessional and soon heard of an alarming number of falls into the bayou. Immediately he went to the mayor and said that a fence would have to be built around the bayou. “A fence, Father?” “Yes, indeed. Something strong and high surrounding the whole thing.” “Father, that’s impossible. Do you realize how large the bayou is? We simply cannot afford it.” ‘‘Well, man, you had better afford it. Your own wife fell into the bayou six times in the past week.” 

I said at the outset that natural law professes to give us the great starting points of both the moral and political orders. The laws men make to govern overt conduct in society are so many determinations of action with an eye to the moral ideal. Like the more specific ethical precepts, laws are taken by Aquinas to be expressions of ways, among many possible ways, in which the ideal can be realized, or prohibitions of actions which thwart that ideal. There are many attractions in this conception of human positive law, and many difficulties as well. Since other writers have concerned themselves with the origin and nature of law in the usual sense, I shall say nothing further on that score. Proponents of natural law have often ranked various ways in which society can be organized, but it is clear that there are any number of such ways that could receive the sanction of natural law and that no one of them is dictated by it. Some, of course, are excluded by it. 

A number of recent authors have made the point that modern ethical theory is in its way the Christian ideal in a fallen or fragmentary condition cut off from the sanctions that make it intelligible. I think of Alisdair McIntyre, Elizabeth Anscombe and Alan Donagan. In sketching what is in fact the Thomistic version of natural law as I understand it, I made no mention of its theological expression. By that I mean Thomas’ remark that natural law is the specifically human way of participating in the divine law. My omission was deliberate. I do not think that the recognition of the principles of natural law is one with the awareness of any theoretical account of it, whether the one I have attempted or the one I am now calling a theological account. No more does the spontaneous recognition of logical laws entail that one has a theoretical account of them. 

It is, needless to say, a nice question whether any account of natural law could succeed which does not view the human agent as so made that his fulfillment can so to speak be discerned by reflecting on the kind of agent he is. This suggests an intention in his fashioner and teleology in his acts. Jean-Paul Sartre is there to tell us that, from an atheistic perspective, man can have no nature since he has no maker, and he goes on to ring the changes on Dostoevsky’s remark that, if God does not exist, anything is permitted. 

Since I am a philosophical theist as well as a Christian, and thus in several ways am convinced of the truth that there is a God, the fact that natural law requires a theological underpinning does not bother me. If man is fashioned by God, as he is, any attempt to account for man and his actions without mention of God, sooner or later, is bound to be either false or inadequate. By this I do not mean that it requires a specifically religious underpinning. After all, the great pagans, Plato and Aristotle, taught versions of natural law, but then both of them were theists. On the other hand, I am mindful of the fact that natural law seems to require the support of a religious authority lest we become blinded to the truths of action written in our very nature. The Civil Rights movement, though its objective was the recognition of what is naturally due human persons, drew its inspiration from the Christian message. So too, in the case of abortion, it seems a practical necessity that we draw support for knowledge of its wrongness from religious authority. But the wrongness of abortion is nonetheless not a religious truth as if only believers are prohibited recourse to it. But this, like the relation of natural to positive law is a very long story indeed. 

Dr. Johnson had a friend who said that he had thought of becoming a philosopher but somehow cheerfulness kept breaking through. You ran a risk in asking a philosopher to speak to you. And I ran a risk in accepting. There is an old saying: Si tacuisses, philosophus remansisses: if you had kept quiet you would have remained a philosopher. I sink now into silence, relieved, I hope, by onslaughts of cheerfulness, where perhaps I can regain my status as a seeker after wisdom.*

*This article is based on a paper presented at the national meeting of the Philadelphia Society, held in April of 1981.

Ralph M. McInerny was an author and a professor of philosophy at the University of Notre Dame.