The Thomist 67 (2003): 1-44 THE COGNITIVE STRUCTURE OF THE NATURAL LAW AND THE TRUTH OF SUBJECTIVITY1 MAR.TIN RHONHEIMER Pontifical University of the Holy Cross Rome, Italy LA "DUALISTIC FALLACY" AND THE ESSENTIALLY COGNITIVE CHARACTER OF THE NATURAL LAW A) A Historical Reminiscence: The "Nature-Reason" Dichotomy In a book bearing the title Lex naturae, which was published almost half a century ago and became before Vatican Council II an obligatory work of reference, moral theologian Josef Fuchs presented a systematic exposition of the formulations of the Magisteriurn of the Church on the natural moral law. 2 He thought that he had found "two series" of formulations. The first series referred to the "ontological foundation" of the natural law, the "nature of things": these formulations identified the natural law with the "corporeal-spiritual nature of man" and thus understood it as nature, which was normative for human action. On the basis of this first approach, the natural law was regarded as a normative order placed within the order of things. On the other hand, the 1 This paper was presented during the VIIIth General Assembly of the Pontifical Academy for Life (Vatican City, February 25/27, 2002) and will be published with the title "La legge morale naturale: conoscenza morale e coscienza" in the Proceedings, edited by the Libreria Editrice Vaticana. 2 J. Fuchs, Natural Law: A Theological Investigation, trans. H. Reckter and J. Dowling (New York, 1965; original German edition published 1955). For more details see M. Rhonheimer, Natural Law and Practical Reason: A Thomist View of Moral Autonomy (Fordham University Press, New York, 2000), 8ff. MARTIN RHONHEIMER 2 second series of formulations was said to refer to what Fuchs called "the noetic aspect of the natural law, its being written into the heart, its natural ability to be recognised by man. "3 With this schematization, Fuchs echoed an approach that was widespread in the neo-Scholastic theology and philosophy of the period, which without doubt also influenced the language of not a few documents of the Magisterium. According to this approach, the "natural law" is an order of nature that is knowable by man, and, once known, imposes itself immediately as a norm of moral action. 4 This schema, in essential terms, is dualistic because it is based upon a dichotomy between "nature" and "natural order" (the objective aspect) on the one hand, and "reason" and "moral knowledge" (the subjective aspect) on the other: the natural law is situated in the sphere of nature; it is the function of reason to read the moral order placed in nature and to follow this order in free action. Only in this sense can one affirm that the natural law "is written in the heart of man": it is an objective, normative natural order that is subjectively known and applied to action. But an observation must be made here: according to this notion what is "written in the heart of man" is not so much the natural law in its objective being as it is the subjective knowledge of this law. The natural law itself is said to be a kind of code of moral norms, found in nature as an "object" of knowledge-though, as "law," independent of this last. This notion is based upon what I would like to call a "dualistic fallacy." In my judgment, it is difficult to match this way of speaking about the natural law with the long tradition of the doctrine on lex naturalis, of which St. Thomas was not only a privileged witness but also perhaps the most lucid and original continuator. For this tradition, the natural law was never simply 3 Fuchs, Natural Law, 6-9. Cf. ibid.: "In these [texts concerned with the ontological aspect] the being, the very essence or nature of man as composed of body and spirit appears as a norm of moral behavior and of law ... reason reads the natural law in the nature of all things and particularly in the nature of man." Fuchs's assertion that this schema expresses in a completely general way the opinion of traditional moral theology is certainly not correct. Cf. M. Rhonheimer, Natural Law and Practical Reason, 9ff. 4 THE COGNITIVE STRUCTIJRE OF THE NATURAL LAW 3 a "natural order," the object of the knowledge of the subject which only through this knowledge would become something "written in the heart" of man. Indeed, this tradition understood the natural law as a special form of moral knowledge (i.e., as natural knowledge of good and evil), and thus affirmed the essentially cognitive character of the natural law. According to this tradition, the natural law is "written in the heart of man" not only because it is "something known" but specifically because the very intellectual opening of the human subject to moral good constitutes a "law" for human acts. Since this opening takes place in a natural way it can really be called a natural law. Thus St. Ambrose, almost a thousand years before St. Thomas Aquinas, when paraphrasing the famous passage from the letter of St. Paul to the Romans (2:14ff.), spoke about the natural law, which for him was like the "word of God" written into our hearts, in the following terms: "for this reason the ideas of good and evil have sprung up in us, whereby we understand by nature that what is evil must be avoided, and equally by nature we know that there has been prescribed for us what is good. "5 The natural law is this practical, and thus preceptive, natural knowledge of moral good and evil.6 Understood in these terms, the natural law shows that it is located specifically on the side of the subject and, as a result, that it is really "subjective." Its objectivity-and thus the objectivity of the moral norms based upon it-consists in the fact that in this natural knowledge of human good the truth of subjectivity is expressed. As we will see in a more detailed way later on in this 5 St. Ambrose, De Paradiso, 8, 39: "opiniones queaedam nobis boni et mali pullulaverunt, dum id quod malum est naturaliter intellegimus esse vitandum et id quod bonum est naturaliter nobis intellegimus esse praeceptum" (in Sancti Ambrosii EpiscopiMediolanensis Opera frutte le Operedi Sant'Ambrogio,ed. bilingua},2/I, ed. Carolus Schenkl, introduction, translation, notes and indexes by P. Siniscalco [Milan: Biblioteca Ambrosiana; Rome: Cina Nuova Editrice, 1984], 98-99). Cf. also A. Trape, "L'universalita e l'immutabiliti\ delle norme morali e l'oggettivitl de! giudizio morale secondo i Padri latini, in particolare secondo Sant'Agostino," in Universaliteet permanencedes Lois morales, ed. S. Pinckaers and C. ]. Pinto de Oliveira (Fribourg: Editions Universitaires; Paris: Editions du Cerf, 1986), 90-101. 6 Cf. also St. Augustine, who speaks in his De libero arbitrio,I, 6, 15, 48 of "ilia lex quae summa ratio nominatur, cui semper obtemperandum est et per quam mali miseram, boni beatam vitam merentur." 4 MARTIN RHONHEIMER paper, the natural law is, in fact, the intrinsic principle of truth of practical reason. It is certainly the case that for the purposes of daily communication and pastoral language expressing oneself in the terms of this dualist schema can in many cases be sufficient and even useful. This schema can also be enough to defend the existence of a natural right-that is to say, the idea that underlying and prior to any positive legal norm there exists an objective normative order of good and right. Finally, it expresses the idea that for subjectivity-for the moral knowledge of the acting subject-there exists an objective rule of truth that is not to be identified with what the subject in fact believes to be true and good. In this last sense, the natural law, indeed, is that moral norm that establishes the truth of subjectivity, defending it from affirming as really good that which is good only in appearance. However, the dualistic schema does not fail seriously to lead astray the analysis of the natural law and the whole of the ethicalnormative discourse based upon it, to the point of rendering such a discourse unintelligible and not very convincing in rational terms. The counterposing of objective "nature" (the "natural order") on the one side, and subjective "reason" ("moral knowledge") on the other, favors a "physicalist" understanding of the natural law. In a physicalist notion of the natural law, this "law" is identified with the merely natural structures and ends upon which a moral normativeness is conferred in an immediate way. B) An Alternative: The Anthropology of the Essential Unity of "Nature" and "Reason" This dualistic fallacy obfuscates the fact that reason, as a cognitive faculty, and thus the very subjectivity of the moral agent, is a part of what we call the "nature of man." It is precisely the intellectual acts, of which reason is the discursive part, that open the human subject to an understanding of the human good according to the truth of his "being a person" (i.e., a corporealspiritual unity). This is a good that reveals itself to be a "good of THE COGNITIVE STRUCTURE OF THE NATURAL LAW 5 the person" only in the face of intellectual cognition. This good, therefore, is not a simple "object" which is said to be face to face with the knowing subject as a simple "natural given fact." It is also a part of the same knowing subject because in the cognitive acts it is manifested, and in a certain sense constituted, through its intelligibility. We are here face to face with an anthropological and metaphysical fact that, through the employment of the right approach of moral philosophy, seems to me to be of decisive importance: the "nature of man" is not conceivable without the intellectual part and the corresponding acts of the intellect and of reason. As I have argued in detailed fashion elsewhere,7 action always certainly follows and expresses, according to St. Thomas Aquinas, the being of every thing (agere sequitur esse), but at the same time this means that the being of things, that is to say their essence or nature, of which acts are a consequence, in itself is unknown to us. We know it by knowing the specific faculties of each nature. The faculties are known by their acts, but we know the acts by their objects. 8 The object of human lies in reason and the will as appetitus in ratione-is specifically good in the multiple forms of its self-expression. For this reason, to know the nature of man we must first know, however paradoxical this may seem, the specifically human good. This applies, in principle, also to nonrational animals-however, in this case we can know their good through an observation of their behavior (i.e., certain typical regularities and normalities). In the case of man, who acts on the basis of freedom, that which takes place regularly and with "normality" is not a criterion by which to determine his good. Human persons act on the basis of reason and thus with freedom, since reason is "open to many things" and can have "various notions of good" -false ones as 7 M. Rhonheimer, La prospettiva della morale: Fondamenti dell'etica filosofica (Rome: Armando, 1994), 159ff. 8 St. Thomas Aquinas, De Veritate q. 10, a. 1: "Quia vero rerum essenriae sunt nobis ignotae, virtutes autem earum innotescunt nobis per actus." MARTIN RHONHEIMER 6 well as true. 9 Thus the ethical question is raised. Ethics is not a philosophy of nature; it does not describe regular, and thus natural, behavior. 10 The human nature that we are looking for as a foundation for human action, and of which moral good is the adequate expression, can be found by us only to the extent to which we already know the human good. Knowledge of human nature is not the point of departure for ethics, and even less for practical reason of each acting subject: it is, rather, its result. must already know the human good to interpret "nature" rightly and thereby reach the concept human nature, which is fuH of normative meaning. This human good we know, indeed, through the natural law, which therefore must be understood as a cognitive principle-as a form, that is to say, of moral knowledge. We can now state dearly, therefore, that the human good is not simply an object "given" to intellectual acts. The very nature of the as it does from the spiritual soul which is a substantial form and thus the lifo principle of its corporeality-means what is really good for man is, in a certain sense, constituted and formulated only in the intellectual acts themselves. The human and moral good is essentially a rationis: a reason, for reason, and formulated by reason. 11 Only good within the horizon of this good, as it appears before the intellectual acts of the soul, does "human nature" reveal itself in normative significance. As a result, and even if at first sight this may seem paradoxical, knowledge of the human good precedes the right understanding of human nature. This cannot reveal its normative character before all that is natural in man has been the light of that good that is the object of the acts interpreted 9 St. Thomas Aquinas, Summa Theologiae I-H, q. 17, a. 1, ad 2: "Ex hoc enim voluntas libere potest ad diversa ferri, quia ratio potest habere diversas conceptiones boni." 1 Cf. Aristotle, Physics, H, 8. 11 For a broader exposition of the notion of bonum rationis see M. Rhonheimer, Praktische ° Vemunft und Verniinftigkeit der Praxis: Handlungstheorie bei Thomas von Aquin in ihrer Entstehung aus dem Problemkontext der aristotelischen Ethik (Berlin: Akademie Verlag, 1994 ), 124ff. THE COGNITIVE STRUCTURE OF THE NATURAL LAW 7 of the intellect-and (as we will see later) not of the speculative intellect but of the practical intellect, from which the natural law emanates. As a consequence, it does not seem adequate in moral philosophy, and even less in an analysis of the "natural law," to depict human reason as the faculty "that knows" in the face of a nature that is "that which is known." This schema simplifies things, just as certain neo-Scholastic theories have simplified the analysis of the natural law, obscuring its real nature. 12 We need once again to discover human reason specifically because it is also "nature"; the reason, that is to say, that naturally knows the good to be done and the evil to be avoided. II. THE APPROACH OF ST. THOMAS AQUINAS: BEYOND THE DUALISTIC FALLACY A) A Long-forgotten Text It is symptomatic that Fuchs in his above-mentioned book did not take suitably into account a text of the Magisterium on the natural law that is, to my knowledge, the only one in which the notion of the natural law appears as the subject of papal teaching, and not simply in order to expound on a particular subject of morality. I am referring here to the brief and summarizing exposition on the natural law that is presented, within the much wider context of the teaching on human freedom and the moral law, in the encyclical Libertas praestantissimum of Leo XIII. 13 Fuchs quotes this text only in an incomplete fashion, without ascribing particular importance to it, and, it appears, without grasping its deep meaning. In fact, the text could not be associated 12 In my judgment, the incorrect approach of so-called autonomous morality has its roots precisely in this dualistic fallacy and the consequent "physicalist" understanding of the natural law, "liberation" from which is sought by turning terms upside down, by declaring that reason is "autonomous" in relation to nature, but in a way that does not go beyond but instead continues, in opposite terms, the traditional dualism. I have engaged in a broad analysis of this in my Natural Law and Practical Reason. 13 Cf. M. Rhonheimer, Natural Law and Practical Reason, 1 lff. 8 MARTIN RHONHEIMER with either of the two "series" of texts that make up Fuchs's schema. But it is also fitting to mention that this text had never been taken up in any subsequent document of the Magisterium! It was not until the encyclical Veritatis splendor of John Paul H, published in 1993, that it was quoted once again suitably emphasized) in a document of the Magisterium, together, as we will see, with another key text by St. Thomas Aquinas on the natural law. In fact, according to the doctrine of St. Thomas, which was the encyclical of Leo XIII, the concept admirably summarized of the natural law did not form a part of the rather simplistic alternative mentioned above. For St. Thomas, the natural law is placed at one and the same time on the side of the knowing subject and on that of the objectivity of the truth of "nature." According to this conception, the natural law is first and foremost the natural way by which man knows the human good in a practical and imperative way according to truth, a knowing, that for its part, renders manifest that moral order that we usually call the "natural order." B) The Natural Law: A "Praescriptio R.ationis" The text of Leo taken up Veritatis splendor (n. fundamentally contains three assertions. The first places us in a decisive way within the right approach. This text affirms first of all that the natural law "is written and engraved in the heart of each and every man, since it is none other human reason itself which commands us to do good and counsels us not to sin." These words provide a formal or essential definition of what the natural law is: it is not "human nature" or "an order of nature"; nor is it a norm encountered in the nature of things. It is something "written and engraved in the heart of each and every man." It is "human reason itself" because it commands us to do good and forbids us to sin. The natural law, therefore, is specifically practical reason, and, more precise terms, the set of determined judgments of practical reason-those judgments, that THE COGNITIVE STRUCTURE OF THE NATURAL LAW 9 is to say, that naturally make us do good and flee from evil. For this reason, in the next sentence, the text of Leo XIII calls the natural law a praescriptio rationis, a "prescription of reason," a term that is near, if not identical, to the terminology of St. Thomas, for whom the natural law, like every law, is an ordinatio rationis.14 Because of this, the natural law possesses in a precise sense the character of a "law." It is not a law in the sense of the physical or natural laws of modem science. This way of speaking about the "natural laws" as natural regularities, orientations, and structures, knowable to man and then applicable at a practical level, is already a derived and improper use of the term "law," which, although it also has roots in Stoic thought, arose with modern science. When Kepler spoke about the "leges celeritatis et tarditatis" of the earth, and Newton formulated his "leges motus/' they were certainly not speaking about a rational principle that orders acts, but rather of structures and regularities that are, indeed, nature. Inasmuch as these "laws" are nature, they are certainly an effect of the ordering reason of the Creator, but considered in themselves they remain a natural structure that is simply an object of speculative knowledge. 15 It would be an anachronism to interpret texts such as those of St. Thomas Aquinas on the natural law within the approach of the modem natural sciences. 16 When St. Thomas speaks about a 14 ITh I-II, q. 90, a. 1, ad 3. It is true that St. Thomas Aquinas calls a "law" not only that which regulates but also that which is regulated by certain laws, such as the inclinations that come from some laws. This, however, is not called law "essentialiter, sed quasi participative." In its own sense, that is to say in the sense of that which regulates, "lex est in ratione sola" (ITh I-II, q. 90, a. 1, ad 15 1). 16 Thus, for example, Johannes Messner wanted to assimilate the concept of "natural law" in the moral field to that to be found in the natural sciences Q. Messner, Das Naturrecht [Innsbruck-Vienna: Tyrolia Verlag, 6 1966], 55). In his unfavorable critical review of my Natural Law and Practical Reason (German original: Naturals Grund/age der Moral), A. F. Utz refers explicitly to the position of Messner, calling it the authentic position of St. Thomas Aquinas: "Naturgesetz ist bei Thomas zunachst ein Gesetz im naturwissenschaftlichen Sinn, d.h. ein Gesetz des Seins" (A. F. Utz, "Wonach richtet sich das Gewissen?, Die neue Ordnung," Heft 1 [1988]: 155. However, Utz's criticism is based upon a very serious misunderstanding; see the "Postscriptum" to Natural Law and Practical Reason (560f.). 10 MARTIN RHONHEIMER "law," he speaks about it in a legal-poHtical sense, by analogy with AS human laws, with the divine law, and with the eternal law the ordering reason of God. this sense, "law" is an ordinatio rationis, or rational prescription, that is to say an imperative act of reason that directs, in a given sphere, human acts to their end, which is always a certain good. 17 "Nature" as nature does not have the character of being law. "Law" is always aliquid pertinens ad rationem: 18 laws can established by the eternal reason of God, by the reason of a human legislator, but also naturally by the natural reason of every individual man precisely because this last knows in a natural and prescriptive-that is to say, practical-way the good to be done and the evil to be avoided, thereby ordering his action to the due end. For this :reason, for St. Thomas the first principle of practical reason and the first precept of the natural are exactly the same: bonum est faciendum et prosequendum et malum vitandum. 19 The formally rational and cognitive character of the natural law is confirmed by a text of St. Thomas that is twice quoted in Veritatis splendor (nn. 12 and 40). It affirms that the natural law is "nothing other than the light of understanding infused in us by God, whereby we understand what must be done what must 20 be avoided. " Without doubt, this formulation expresses in a more categorical and a dearer way the rational and cognitive character of the natural law. Like every law, the natural law is, as St. Thomas would later say Summa Theologiae, "something constituted by reason" (aliquid a ratione constitutum) 21 and a 17 Thus is explained how the definitio legis, which contains all the essential elements in a real sense, is that of civil law. See STh I-Il, q. 90, a. 4: "definirio legis, quae nihil est aliud quam quaedam rarionis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata." For the practical-political origins of the notion of law in St. Thomas Aquinas see W. Kluxen, Philosophische Ethik bei Thomas von Aquin (Hamburg: Felix Meiner, 1964), 230ff. 18 STh I-II, q. 90, a. L 19 STh I-II, q. 94, a. 2. We will come back to this principle later. 20 St. Thomas Aquinas, In duo praecepta caritatis et in decem legis praecepta expositio, prologus I: ulex naturae . . . nihil aiiud est nisi lumen intellectus insirurn nobis a Deo, per quod cognoscimus quid agendum et quid vitandum. Hoc lumen et hanc legem dedit Deus homini in creatione." 21 STh I-H, q. 94, a. 1. THE COGNITIVE STRUCTUREOF THE NATURAL LAW 11 "work of reason" (opus rationis). 22 The natural law, in fact, proceeds from the light of understanding that God gave to man at the moment of his creation. The natural law is a set of cognitive acts that make us perceive in an imperative, that is to say practical, way the good to be performed and the evil to be avoided. This law is called the natural law precisely "because the reason which promulgates it is proper to human nature," in the same way that the intellect that has been given to man by the Creator is a part of human nature. It is a law that man through his intellectual acts establishes, formulates, or promulgates naturally. 23 C) The Natural Law as "The Participation of the Eternal Law in the Rational Creature" We now come to the second assertion of the text by Leo XIII that is quoted in Veritatis splendor: "But this prescription of human reason could not have the force of law unless it were the voice and the interpreter of some higher reason to which our spirit and our freedom must be subject." Paraphrasing Leo's text, Veritatis splendor then continues: "Indeed, the force of law consists in its authority to impose duties, to confer rights and sanction certain behaviour." Veritatis splendor then goes on by quoting Leo: "Now all of this, clearly, could not exist in man if, as his own supreme legislator, he gave himself the rule of his own actions." This second assertion says that these prescriptive acts of human reason really have the character and the force of a law: they impose duties and confer rights, as well as sanctioning certain behavior. Reason can have such authority only because it is the voice of a higher authority on which it depends and to which it is subject. This statement is important not only because it affirms the subjection of human reason to the reason of its Creator, but also because it refers human reason, in the establishing of its normativeness, not so much to "nature" or to a "natural order" as to 22 Ibid. STh I-II, q. 90, a. 4, ad l:"promulgatio legis naturae est ex hoc ipso quod Deus earn mentibus horninum inseruit naturaliter cognoscendam." 23 12 MARTIN RHONHEIMER divine reason! This last is the eternal law which is the ratio divine wisdom by which it guides aH acts and movements, 24 thereby ordering things to their due end. 25 The providence of God fa manifested in a natural way in the natural law: God teaches is to say, in the man his own true good in an imperative way, form of law, through man's own cognitive acts. With this we come to the third assertion of the text by Leo XIII, an assertion that exactly confirms the perspective that has just been outlined: "It follows that the natural law is itself the eternal law, implanted in beings endowed with reason, and indining them towards their right action and end; it is none other than the eternal reason of the Creator and the Ruler of the universe." Human reason, therefore, because it is the natural law, refers back not to nature but to God. It is important not to misunderstand this statement. The idea is not that to know good human reason needs to be instructed by God the sense of receiving a revelation that is added to what human reason is able to know. The text that has been quoted asserts precisely the opposite. The natural law is the eternal law itself: the eternal law God manifests itself in the natural law and specifically through it achieves its goal of directing human action to its due end. The eternal is thus known to the extent to which the natural law is explained and becomes effective, that is to say, through the natural reason of man. In other words: the natural law is reaHy a participation of eternal law; it is its possession in a cognitive and active way. D) "Participated Theonomy": The Normative Task of Human Reason Therefore, practical reason, because it is natural law and proceeds on the basis of the natural law, is reaHy the authoritative guide for action, imposes duties, and formulates rights. Man 24 STh K-H, q. 93, a. 1: "lex aeterna nihil aliud est quam rntio divinae sapientiae, senmdum quod est direcriva omnium actuum et morionum." 25 Ibid.: "ratio divinae sapientiae moventis omnia ad debitum finem, obtinet rationem legis." THE COGNITIVE STRUCTUREOF THE NATURAL LAW 13 possesses real autonomy precisely because his autonomy is "participated theonomy": participation and self-possession of the eternal law. 26 This is expressed by St. Thomas Aquinas in various famous formulations such as "the natural law is none other than the participation of the eternal law in the rational creature," 27 or that by his reason man "shares in divine providence, providing for himself and for others," 28 and that the eternal law, leaving aside an additional revelation, which is always possible, is revealed specifically through the natural law, that is to say through the "natural reason," which "derives its own image" from the eternal law. 29 In the logic of the argument of St. Thomas all these texts, and in particular the most famous one according to which the natural law is the participation of the eternal law in the rational creature, do not aim in the least to affirm the theonomic character of the natural law, but seek, rather, to establish the normative character of human reason, since this last is none other than an "impress of the divine light within us," by which we can discern good from evil, which is precisely what the natural law does. 30 These clarifications are important because the reference to the eternal law, that is to say, the affirmation of the subjection of prescriptive acts of human reason (which are called "natural law") to a higher wisdom does not relativize in any way the preceptive task of the practical reason of the human person, nor does it make us think that to know the human good one needs every time an explicit reference to God. Indeed, commanding and moving 26 Cf. Veritatissplendor, n. 41. On this subject see the excellent article by J. De Finance, "Autonomie et theonomie," in M. Zalba, ed., L'agire Morale, Atti de! Congresso Intemazionale Roma-Napoli - 17/24 Aprile 1974: Tommaso d"Aquino nel suo settimo centenario, vol. 5 (Naples: Edizioni Domenicane Italiane, 1974), 239-60. I took full advantage of this article in Natural Law and PracticalReason, 319ff. 27 STh I-II, q. 91, a. 2: "lex naturalis nihil aliud est quam participatio legis aetemae in rationali creatura." 28 Ibid.: "fit providentiae particeps, sibi ipsi et aliis providens." 29 STh I-II, q. 19, a. 4, ad 3: '1icetlex aeterna sit nobis ignota secundum quod est in mente divina; innotescit tamen nobis aliqualiter vel per rationem naturalem, quae ab ea derivatur ut propria eius imago; vel per aliqualem revelationem superadditam." 30 STh I-II, q. 91, a. 2: "quasi lumen rationis naturalis, quo discernimus quid sit bonum et malum, quod pertinet ad naturalem legem, nihil aliud sit quam impressio divini luminis in nobis." 14 MARTIN RHONHEIMER belongs to the nature of practical reason. Practical reason is the beginning of practice and moves the agent to follow or to avoid what he believes good or bad. This is not to be understood as if human reason were only directed to knowing relations of adequacy in an indicative but not yet imperative way, requiring (in order to become preceptive and properly practical) to have recourse to knowledge of God as the author of this order of good, and thus as legislator (this was in the early seventeenth century the opinion of Francisco Suarez).31 Human nature is already in itself constituted in such a way that reason, because moved by the will and inserted into the appetitive dynamism of the natural inclinations, really moves to practice and to good. Explicit knowledge of the participatory character of this intellectual motion towards known good-knowledge, that is to say, of the subjection of man's reason to the reason of his Creator-is not necessary to explain the existence of an awareness of a real and specific obligatory character of known good. This is due to the fact that because "good" is something "true" otherwise it would not be intelligible-the true and the good mutually include each other. The judgments of practical reason have as their object good as regards acting from the aspect of its truth. Like the speculative intellect, the practical intellect knows truth. 32 Known good, therefore, is a "practical truth. "33 Truth, however, imposes itself on the conscience because of its own "being true." Thus, the known good of reason obliges the knowing subject in the same way in which known truth requires assent. 31 Cf. M. Bastit, Naissance de la loi modeme: La penseede la loi de saint Thomas a Suarez (Paris: P.U.F., 1990), 338ff. 32 STh I-II, q. 79, a. 11, ad 2: "verum et bonum se invicem includunt: nam verum est quoddam bonum, alioquin non esset appetibile; et bonum est quoddam verum, alioquin non esset intelligibile •.. obiectum intellectus practici est bonum ordinabile ad opus, sub ratione veri. Intellectus enim practicus veritatem cognoscit, sicut et speculativus; sed veritatem cognitam ordinat ad opus." 33 For the concept of "practical truth" in this context see M. Rhonheimer, ''Praktische Prinzipien, Naturgesetz und konkrete Handlungsurteile in tugendethischer Perspektive: Zur Diskussion iiber praktische Vemunft und 'lex naturalis' bei Thomas von Aquin," Studia Moralia 39 (2001): 113-58. THE COGNITIVE STRUCTURE OF THE NATURAL LAW 15 Furthermore, the judgment of practical reason has the character of a dictate which includes in itself the vis obligandi. 34 Explicit cognition of the participated nature of the natural law and the moral order established by it does not therefore constitute the practical and imperative value of human reason, but enriches it in a way that is known as practical truth derived from a transcendent higher source, that which in certain circumstances and extreme situations can also supply the decisive motive for an effective subjection to the dictates of the natural law. In addition, explicit awareness of the "participative subjection" of human reason to divine reason prepares the moral experience to take part in an experience that is also specifically religious, an experience that is eliminated by the mistaken affirmation of absolute autonomy on the part of man. As a result, the knowing of the participated character adds the "ratio legis" in the real sense of the term, being subordinated and subjected to a higher law, the law of God. Even if the natural law, as the work of practical reason, possesses in a real sense the character of a "law," the ratio legis is not made explicit or concomitantly reflected at the moment when these practical judgments of the natural law are carried out. The fundamental moral experience of man is not that of following a "law," but the experience of the truth of good, and, in more precise terms, in the light of the first practical principle, the experience of bonum faciendum, of "the good to be done." However, in knowing explicitly the participated character of these practical judgments, man is able to understand that his autonomy is expressive of a theonomy: he will understand the good known by him not only as a "good to be done" but also as the will of God. 35 Saint Thomas 34 Cf. ST'h I-II, q. 104, a. 1: "praeceptorum ciuscumque legis quaedam habent vim obligandi ex ipso dictamine rationis, quia naturalis ratio dictat hoc esse debitum fieri vel vitari. Et huiusmodi praecepta dicuntur moralia: eo quod a ratione dicuntur mores umani." Cf. for this question Rhonheimer, PraktischeVemunft und Vemunftigkeit der Praxis, 53 lff. 35 In this sense, but only in this sense, the natural law can be understood as the "principium exterior" of human acts (cf. ST'h I-II, q. 90, pro.): because the natural law is participation of the eternal law it "comes from without," but because it is the natural law, one is dealing, rather, with an intrinsic principle of action. One should also take into consideration the biblical context of the moral theology of St. Thomas, who wanted to insert Aristotelian 16 MARTIN RHONHEIMER Aquinas, in fact, on this aspect of the natural law, says rather little. As a good Aristotelian, 36 he emphasizes, rather, the other aspect, that is to say the prescriptive and driving nature of practical reason, which it is thus capable of specifically actuating as "natural law." In this sense, St. Thomas does not hesitate to affirm that reason, which is the principle of morality, in man relates to his proper good just as the prince and the judge relate to the good of the State. 37 Ill. THE NATURAL LAW AS THE ORDINATIO OF PRACTICAL REASON: THE APPROACH OF ST. THOMAS AQUINAS38 A) Human Reason in the Context of the Natural Inclinations Having arrived at this point, and to save the idea that the natural law and the "natural order to be known and applied" are the same, one could make the objection that God in fact reveals himself "in nature" and that reason is participation of the eternal law of God precisely to the extent to which it knows and makes its own an order that is inserted into nature. Indeed, such a notion of the natural law and its relationship to the eternal law is well known, historically. This is the Stoic notion, which influenced the practical reason into a theological context that was deeply characterized by the biblical tradition of law. 36 For the profoundly Aristotelian structure of Aquinas's moral philosophy see K. L. Flannery, Acts Amid Precepts:The Aristotelian Logical Structure of Thomas Aquinas's Moral Theory (Washington, D.C.: The Catholic University of America Press, 2001); and my PraktischeVernunft und Vernunftigkeit der Praxis. 37 STh I-II, q. 104, a. 1, ad 3: "ratio, quae est principium moralium, se habet in homine respectu eorum quae ad ipsum pertinent, sicut princeps vel iudex in civitate." 38 For further clarifications I take the liberty of referring the reader to my above-cited works: (Natural Law and PracticalReason; La prospettivade/la morale; PraktischeVernunft und Vernunftigkeit der Praxis) in which I examine this whole subject in detail. In addition, clarifications and additions can be found in the Spanish edition of La prospettivade/la morale (La perspectivade la moral: Fundamentos de la etica filos6fica [Madrid: Rialp, 2000]) and even more in the German edition (Die Perspektiveder Moral: PhilosophischeGrundlagender Tugendethik [Berlin: Akademie Verlag, 2001)). Finally, and to avoid any misunderstanding, readers may find it useful to consult my article "Praktische Vernunft und das 'von Natur aus Verniinftige': Zur Lehre von der Lex naturalis als Prinzip der Praxis bei Thomas von Aquin," Theologie und Philosophie75 (2000): 493-522. THE COGNITIVE STRUCTURE OF THE NATIJRAL LAW 17 tradition of natural law that came down to us through Roman law. The idea, typical of Stoa, that the eternal law is to be identified with the cosmic order and that it is therefore decipherable through a knowledge of nature, of which man is a part, opens the way to a notion of law and natural right that in the Western tradition has been very important. This historical tradition certainly contains a part of the truth. However, a majority of the Fathers of the Church, who were themselves influenced by Stoicism, placed emphasis on the rational, intellectual, and cognitive character of the natural law, and thereby introduced a significant transformation into their reception of Stoic philosophy. 39 The Fathers perceived nature as the creation of a God and coming from an eternal law that are transcendent and thus not to be identified with the natural order. For the Stoics, human ratio is not the participation and image of a transcendent ratio, but a logos that is inherent in nature itself. The human ratio thus becomes a kind of reflection of what nature already contains in terms of inclinations and ends; man, in oikeiosis, rationally assimilates this natural order. 40 It is thus that one explains the famous formulations of Cicero which, read within a post-Stoic and even Christian context, appear rather ambiguous or at least insufficient: law is said to be "highest reason, inherent in nature which commands us as to what must be done and forbids the contrary." 41 It seems no less ambiguous and insufficient to speak about an "unwritten but naturally given law ... which we grasp, take and tear from nature," 42 and finally (to cite Cicero's most famous formulation) to call the natural law simply "right reason, in agreement with nature. "43 39 Some aspects are addressed by M. Spanneut, "Les normes morales du stoi"cismechez les Peres de l'Eglise," in Universalite et permanence des Lois morales, 114-35. 40 On the doctrine of oikeiosis cf. M. Forschner, Die stoische Ethik: Uber den Zusammenhang von Natur-, Sprach- und Moralphilosphie im altstoischen System (Stuttgart: Klett-Cotta, 1981), 142ff. 41 Cicero, De Legibus, I, 6, 18: "lex est ratio summa, insita in natura, quae iubet ea quae facienda sunt, prohibetque contraria." 42 Cicero, Pro Milone, IV, lO:"non scripra, sed nata lex ... rernm ex natura ipsa adripuimus, hausimus, expressimus" (in M. Tulli Ciceronis Orationes, ed. A. C. Clark, e. typ. [Oxford: Clarendon, 1964]). 43 Cicero, De Re publica III, 22, 33: "recta ratio naturae congruens." 18 MARTIN RHONHEIMER For the Fathers of the Church, the imago this God the world is neither nature nor the cosmic order: the image of the Creator is present solely in the spiritual soul of man, in particular in his intellect and in his acts of practical reasono Practical reason does not simply reflect "nature"; rather, in being an active human reason in its tum participation of the divine iHuminates nature, rendering it fully intelligible, This is one explains the statements on the natural law such as the one cited above of Sto Ambrose, which agrees perfectly with the Thomistic notion of the natural law because it emphasizes its cognitive character: "we understand by nature that what is evil must be avoided, and equaHy by nature we know that there has been prescribed for us what is good." It seems evident that the author of these words conceives of the natural law first and foremost as a form moral knowledge: namely, the practical and natural evil, which, for St. Ambrose, is "the word knowledge of good of within us. We do not find the divine logos either in nature or on "tablets of stone," but "imprinted in our hearts, because of the Hving Spirit of God. Thus the judgment of our conscience constitutes a law to itselt "44 Nature as a "given natural order" and this sense an "object" for reason belongs to the concept of the natural law in yet another fashion: once it has been established that the natural law is the natural way of achieving practical knowledge of the human good, we are directed to of how such natural practical knowledge of good can be acquiredo In order to understand this, it should kept in mind that man, although he an intellectual the faculty, is not his intellecto Analogously, not even the acts intellect or reason theoretical and practical) are carried out by intellectual power alone. Actus sunt acts are not of the individual faculties but of the concrete subject the totality of his being. It is not reason that knows but the person the globality of his corporeal-spiritual being who knows through his 44 Sto Ambrose, De Paradiso 8, 39: uDei autem praeceptum non quasi in tabulis lapideis atramento legimus inscriptum, sed cordilms nostris tenemus impressum spiritu dei vivio Ergo opinio nostra sibi legem facit" (Schenkel, ed., 98). lHE COGNITIVE STRUCTIJRE OF lHE NATURAL LAW 19 reason. Man is a set of tendencies and vital, sensual, and intellectual/volitional inclinations. The "person" is all of this. It is certainly the case that man is a "person" thanks to his spirituality, but the "human person" is all that is formed by the spirit and body in a unity of substance. Man is not an embodied spirit since he does not belong to the order of spirits. Man belongs to the order of animals, and before anything else he is an animal. 45 The human person is essentially a living body, animated, however, by a spiritual soul that allows this living body, this animal, to carry out not only spiritual acts but also all the other acts of his animal character in a way that is impregnated with the life of the spirit and thus under the guidance of reason: the unity of substance of corporeity/animal character and of spirituality transforms the meaning and the contents of man's corporeity and animal character themselves. Inversely, however, they also confer on the spiritual being of man its specifically human and earthly character-that is, the character of a spiritual existence that never takes place at the margin of the same natural corporeity and animal character of man and his natural environment (the world), but specifically through it. This applies to all the acts both of the speculative intellect, which without a body are not possible for us, and of the practical intellect, which without the natural inclinations could not be practical and move towards action. At this point, however, the question poses itself: how can we understand these natural functions and inclinations, in particular those that arise from the corporeal and animal being of man? Undoubtedly, these tendencies and inclinations-we may think for example of the inclination to conserve oneself or the sexual inclination-are obviously practical, that is to say they push the agent to pursue their good and their own end and thus move towards action. Every natural inclination possesses a natura its own good and end (bonum et finis proprium). However, at the level of their mere naturalness, does following the tendency to conserve oneself or the sexual inclination also mean following the 45 For an excellent approach to the question cf. D. Braine, The Human Person:Animal and Spirit (Notre Dame: University of Notre Dame Press, 1992). 20 MARTIN RHONHEIMER good and end due to man? How can we know what is not only specific to these inclinations according to their particular nature but also due to the person, that is to say, at the moment of following these inclinations, good for man as man?46 It is at this point that there begins in a real sense the analysis of the internal structure and of the "functioning" of the natural law. This analysis, in fact, will explain how the natural law forms a part of the order of nature, expresses it, and in a certain sense constitutes it. However, this natural order, to repeat the point once again, is not an entity that man as a knowing and acting agent finds himself, so to speak, in front of. It is a natural order of which the same natural cognitive acts-the natural acts of practical reason-form a part. Thus one discovers a reason that is also specifically nature (a kind of "ratio ut natura"). It is for this reason that the natural law can really be called "inside man" and that one can say that it is "engraved in his soul." But how can one say that the natural law, understood as practical reason which naturally moves towards good, constitutes the moral order? Precisely because the lumen rationis naturalis so much spoken about by St. Thomas Aquinas is created ad imaginem by divine reason. 47 Specifically, because the natural law is a real participation of the eternal law-and this, in the particular case of the rational creature, in an active way-the natural law can be considered properly as constituted by natural reason, just as the entire order of good is at its origins constituted by divine reason, which is the eternal law.48 This participation displays itself not only in subjection to the eternal law, but also by its participation 46 The important and significant distinction between "actus et finis proprius" and "actus et finis debitus" (or "conveniens"), often ignored by the interpreters, is found in SI'h I-II, q. 91, a. 2, or in IV Sent., d. 33, q. 1, a. 1. I sought to bring out this distinction in a suitable way in my Natural Law and Practical Reason, 67 and 75; cf. also G. Abba, Felicita, vita buona e virtu: Saggio di filosofia morale (Rome: Las, 1989), 183. 47 SI'h 1-11, q. 19, a. 4, ad 3. The commentary of St. Thomas Aquinas on the Gospel according to St. John is very interesting, the principal texts of which are brought together in Natural Law and Practical Reason, 264ff. 48 Therefore, as has already been observed, St. Thomas Aquinas does not hesitate to call the lex naturalis in SI'h I-II, q. 94, a. 1: "aliquid per rationem constitutum: sicut etiam propositio est quoddam opus rationis." THE COGNITIVE STRUCTURE OF THE NATURAL LAW 21 in the specific ordering function of the eternal law that constitutes the moral order, even if human reason, as only participated and created cognitive light, does this not by creating any truth at all but by knowing it and thereby finding it in its own being, essentially constituted by the natural inclinations as well. 49 B) To Re-read Summa Theolgiae I-11, q. 94 a. 2 The locus classicus where St. Thomas Aquinas expounds the genesis and the cognitive structure of the natural law is the famous article 2 of question 94 of the Prima Secundae. Here St. Thomas affirms three things: (1) The natural law is the work of practical reason, which has its own starting point and does not derive its principles from speculative reason. (2) The natural law is a practical and preceptive knowing of the human good which unfolds on the basis of the embedding of human reason in the dynamism of the natural inclinations. (3) Grasped by practical reason, the goods and ends of the natural inclinations are understood and affirmed as constituting human good; at the same time, however, these inclinations with their goods and ends are regulated and ordered by reason, that is to say integrated into the whole of the corporeal-spiritual being of the human person, and thereby also transformed. Only as such do they belong to the natural law and are the natural law. I will now explain these three points in greater detail, keeping closely to the text of STh I-II, q. 92, a. 2 as I do so. 49 The natural inclinations, too, in their natural being, are participations of the eternal law, but in a merely passive manner, as something that is regulated by the eternal law but not as that which regulates, as in the case of man (cf. STh I-II, q. 91, a. 2), or rather, to employ another terminology, per modum principii motivi, and not in an active way, that is, per modum cognitionis (STh I-H, q. 93, a. 6). The question is addressed with great clarity in G. Abba, Lex et virtus. Studi sull'evoluzione della dottrina morale di San Tommaso d'Aquino (Rome: Las, 1983), 260£. 22 own speculative reason.50 IV.AR.TIN RHONHEIMER of practical reason, which has its does not derive its principles As St. Thomas expounds in detail, precepts of the natural law have a relationship to practical reason that mirrors the relationship of the demonstrative principles to speculative (or theoretical) reason. The precepts the natural law are, therefore, thus are not derived from other forms of knowledge. The practical principles or precepts of forms of speculative the natural law are not applications knowledge of human nature. Rather, they are acts in which the natural order of human good at its manifests itself rationally, is to say as an ordo rationis. The practical principles, having their own point of departure, which is not derived, are thus immediately intuited (otherwise they would not be principles, as St. Thomas affirms). Just as the speculative in the intellect has its starting point the experience of being evidence of the absolute contrary nature of a being and a nonbeing, this way comes to formulate its first principle (viz., the principle of noncontradiction), so also, not a consecutive or derived way but in parallel fashion, practical reason begins from a primary experience, irreducible to other experiences-namely, the experience of "good" as a correlate and formal content of our tendencies est quod omnia appetunt). 51 5 ° For a better understanding of this point I am much indebted to G. Grisez, "The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2," Natural Law Forum 10 (1965): 168-201; an abbreviated (butnotauthorized and not fully satisfactory) version can be found in A. Kenny, ed., Aquinas: A Collection of Critical Essays (London and Melbourne: Macmillan, 1969), 340-82. 51 The following is the whole text: "Sicut autem ens est primum quod cadit in apprehensione simpliciter, i1:a bonum est primum quod cadit in apprehensione practicae rationis, quae ordinatur ad opus: omne enim agens agit propter finem, qui habet rationem boni. Et ideo primum principium in ratione pracrica est quod fondarur supra rationem boni, quae est, 'Bonum est quod omnia apperunt.' Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, el malum vitandum. Et super hoc fondanrur omnia alia praecepta legis nattrrae." The profoundly Aristotelian impress of this text becomes even dearer if one reads it in the light of the commentary of St. Thomas Aquinas on the De Anima THE COGNITIVE STRUCTIJRE OF THE NATURAL LAW 23 From this point of departure there springs, in an immediate and indemonstrable way, the first principle of practical reason, which is also the first precept of the natural law: bonum est faciendum et prosequendum, et ma/um vitandum. Just as the principle of noncontradiction is not a principle apart, from which would be deduced other forms of knowledge, but rather a founding principle that is implicit in every other form of knowledge of being, so also from the first principle of practical reason nothing more concrete can be derived. It is, rather, the foundation, which is implicitly always present, of every further form of practical knowledge of both a universal and a particular kind. This principle confers on the judgments of practical reason the operative dynamic of the prosecutio or of the fuga. These last are what we can call the "practical copula" which is not that of theoretical affirmation and negation ("is"/"is not"), but a specifically practical kind of affirmation/negation, which, in fact, moves: it makes good be done and evil be avoided. The first principle of practical reason is not, therefore, a purely logical principle, a kind of "logical structure" of the practical precepts, but rather already the first principle of practice, and at the same time the first principle of morality. 52 This first principle of practical reason, which St. Thomas Aquinas identifies with the first precept of the natural law, constitutes man jointly as a practical subject and as a moral subject. All the subsequent principles formulated by practical reason (i.e., all of the natural law) will participate in this double function. The natural law, in fact, has this double meaning of being: at one and the same time a principle of practice and a principle of morality. The natural law in its original and deepest meaning is not a norm that from the outside regulates human action. It is, instead, the intrinsic of Aristotle, where he states that the point of departure of the practical intellect is "the desirable": "ipsum appetibile, quod est primum consideratum ab intellectu practico" (III De Anima, lect. 15). 52 I tried to show this, in opposition to the interpretation proposed by L. Honnefelder and by G. Wieland, in my essay "Praktische Vernunft und das 'von Natur aus Verniinftige.'" In this essay my interpretation also differs from the interpretation mentioned above advanced by G. Grisez, for whom the first principle is not in all respects a moral principle, but is in some respects pre-moral, a thesis which I have difficulty in fully understanding. 24 MARTIN RHONHEIMER principle itself of human practice, and this in the real meaning of the term: it ensures that man acts. But this human acting is from the outset moral acting, that is to say in virtue of the natural law itself it takes place from the outset within the moral difference of "good/evil." 2. The natural law is a practical and preceptive knowing of the human good which unfolds on the basis of the embedding of human reason in the dynamism of the natural inclinations. The second step of STh I-II, q. 92, a. 2 is an explanation of the genesis of the other precepts of the natural law (or the other principles of practical reason). These already have a more specific content. They are not deduced, as has already been observed, from the first principle, but they constitute themselves through a natural and spontaneous process in which practical reasonalways under the influence of the "practical copula" which commands doing and pursuing good and avoiding evilunderstands the individual goods (ends) of the natural tendencies or inclinations of its own being. This is a genuine experience of the human subject, an experience that is eminently and essentially practical, and that is not derived from any other form of knowledge. 53 It is the originating experience of itself as being 53 Many induce from the statement to be found in STh I, q. 79, a. 11, sc: "Intellectus speculativus per extensionem fit practicus" (a paraphrase of De Anima II, 10, 433a15, to be found in the body of the article correctly quoted as "[intellectus] speculativus differt a practico, fine"), that here we have proof that in fact practical reason depends in its acts on speculative or theoretical reason, denying it thereby its own and independent point of departure. As I sought to demonstrate in Natural Law and PracticalReason (24ff.), the quoted statement by St. Thomas only refers to the intellect considered as intellectualpower: it means that the acts of the practical intellect do not come from another intellectual power, but by way of extension from the acting of the same intellect, which is also the speculative intellect. This extensio, which refers to the faculty, is not given, however, in the iudgments of this faculty: the statement that practical reason has its own point of departure refers solely to the practical judgments which, however, as St. Thomas says explicitly, are not derivates from previous theoretical judgments. This does not hinder the maintenance, at the level of the faculty and the being of the person, of the deep unity between theoretical and practical intellect. And in practical reason itself (the "practical syllogism") premises are also wanted that are simple statements about reality, that is to say judgments of a "speculative" kind; cf. my analysisin La prospettivade/la morale, 98££. THE COGNITIVE STRUC11JRE OF THE NATURAL LAW 25 moving towards good in the multiplicity of the natural inclinations specific to man, and is, therefore, of a practical and moral character. It is also constitutive of every other experience of specific human nature, just as it is the point of departure for subsequent investigations through theoretical speculation. For this reason the metaphysics of man (philosophical anthropology) presupposesthis practical experience of the natural law: the natural law as natural knowing of good is the presupposition of knowledge of human nature. 54 As a consequence, the natural law is a practical and preceptive knowing of the human good, that good which unfolds on the basis of the embedding of human reason in the dynamism of the natural inclinations. Practical reason has the character of an imperium: it is a reason that orders and moves because it is reason that operates within an "inclinational environment." 55 Through practical reason, the natural tendencies and inclinations become a good for reason, they are rationally ordered, and in the order of reason-but only at this intellectual level-they are confirmed as human goods. In this second step, St. Thomas Aquinas affirms that on the basis of the dynamics of the first practical principle everything that practical reason understands as human good forms a part, as 54 I addressed this subject in detail in Natural Law and PracticalReason, 22-42. The same approach can be found in J. Finnis, Fundamentalsof Ethics (Washington, D.C.: Georgetown University Press; Oxford: Oxford University Press, 1983), lOff.; 20ff., even though it does not seem to me right to call the Aristotelian doctrine on the "ergon idion" an "erratic boulder" (cf. my criticism in PraktischeVernunft und Vernunftigkeitder Praxis, 53ff.). On the other hand, the critical observations made by R. Mclnerny in Aquinason Human Action: A Theory of Practice(Washington D.C.: The Catholic University of America Press, 1992), 184ff., seem to me to be based upon a confusion between "ethical reflection" and "practical knowledge" (cf. ibid., 188). "Ethical reflection" already presupposes the practical knowledge from which originally springs the experience of human good and of one's own human nature. The subject of Finnis's (as of my own) analysis is precisely this original practical knowledge of the acting subject, not the subsequent "ethical reflection" based upon it. For this reason, in the exposition by Mclnerny of the thought of Finnis, that thought is to some extent falsified. 55 Cf. STh I-II, q. 17, a. 1: "Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis." This "imperative" structure applies to practical reason at all levels. Cf. once again the comment on ill De Anima, lect. 15: "Quia enim ipsum appetibile, quod est primum consideratum ab intellectu practico, movet, propter hoc dicitur intellectus practicus movere, quia scilicet eius principium, quod est appetibile, movet." 26 MARTIN RHONHEIMER a good to be done or an evil to avoided, of the precepts of the natural law. 56 On the basis of this formulation, it now becomes dear that the natural law is specificaHy constituted in the process of the deployment of practical reason within the dynamics of the natural inclinations. For this reason, St. Thomas can go on and affirm that "reason naturaHy grasps everything towards which man has a natural inclination in considering them goods, and as a result as something to pursue with works, and contrary as an evil to be avoided. Thus, the order of the precepts of the natural law follows the order of the natural inclinations. "57 Saint Thomas begins at this point to speak about the individual natural from these indinations of the precepts of the natural law-without entering further into details about their rational constitution. He does not speak about them, in my opinion, for rather obvious reasons. In the first place, the subject of this artide is simply the demonstration that the natural law does not consist solely of a single precept but contains a plurality of them. 58 Having explained that the genesis of the precepts of the natural law is due to the constituent relationship between practical reason and the natural indinations, and that within man is to be found a plurality of such inclinations, this article has achieved purpose. In the second place, other aspects that refer to the nature of law in general and the natural law, as well as the fundamental doctrine on reason as a measure and rule of the morality of human acts, have already been addressed previous artides. 59 However, St. Thomas makes a brief reference 56 "so that whatever the practical reason naturally apprehends as man's good belongs to the precepts of the natural law as something to be done or avoided" ("ut scilicet omnia ilia facienda vel vitanda pertineant ad praecepta legis natm"ae, quae ratio practica naturaliter apprehendit esse bona humana")o 57 "Quia vero bonum habet rationem finis, rnalum autem conttarii, inde est quod omnia ilia ad quae homo habet natm"alemindinarionem, ratio naturaliter apprehendit ut bona, et per consequens ut opere prosequenda, et contraria eorum ut mala et vitandao Secundum igitur ordinem indinationum naruralium, est ordo praeceptorum legis narurae:' 58 The title of article 2, in fact, reads: "Whether the natural law contains several precepts, or one only" ("Uttum Jex naturalis contineat plura precepta, vel unum tantum"). 59 This is suitably brought out in J Tonneau, Absolu et obligation en morale (Montreal: Insto d'etudes medievales; Paris: Jo Vrin, 1965), 89f. THE COGNITIVE STRUCTUREOF THE NATURAL LAW 27 to this doctrine in the reply to the second objection. Thus it is that we come to the third point. 3. Grasped by practical reason, the goods and ends of the natural inclinations are understood and affirmed as constituting human good; at the same time, however, these inclinations with their goods and ends are regulated and ordered by reason, that is to say integrated into the whole of the corporeal-spiritual being of the human person, and thereby also transformed. Only as such do they belong to the natural law and are the natural law. In his answer to the second objection, St. Thomas states that "all the inclinations of any part of human nature, that is to say the concupiscible and irascible parts, as they are regulated by reason, belong to the natural law. "60 The natural inclinations in their pure naturalness are not yet the "natural law." They form a part of it because they are regulated by reason; however, the natural law is formally the judgments of practical reason whose object is the individual goods and specific ends of the natural inclinations. In these practical and preceptive judgments these specific goods and ends become, in the order of reason, judged as what is due, that is to say as ends, goods, and due acts. This is the terminology employed by St. Thomas: in participating through the possession of the lumen rationis naturalis in the eternal law-the ordering reason of God-man is not simply.guided by the different natural inclinations towards their own acts and ends, but possesses, at a rational level, a specific natural inclination ad debitum actum et finem. 61 This agrees perfectly with St. Thomas's doctrine on the constitution of the moral object by reason. Indeed, the rational constitution of the human good in the sphere of the specific goods and ends of the individual natural inclinations, on the one hand, and the constitution of the moral object, differently from the STh 1-11, q. 94, a. 2, ad 2: "omnes inclinationes quarumcumque partium humanae naturae, puta concupiscibilis et irascibilis, secundum quod regulantur ratione, pertinent ad legem naturalem." 61 STh 1-11, q. 91, a. 2. 60 28 MARTIN RHONHEIMER object in the pure genus naturae, on the other, are analogous processes. The similarity is explained by the fact that "in human acts good and evil are determined relation to reason. " 62 This analysis of the constitution of human good also agrees with the statement by Aquinas to the effect that moral acts, in their kind, "are made up of forms because they are conceived by reason." 63 Indeed, reason has a relationship to the natural indinationsbecause they are natural-that that of the relationship between form and matter. Together they form a complex unity (the same applies to the moral object, which is made up of materia circa quam and the formal part, which comes from reason). 64 The naturalness of good, as it is formulated in the natural law, cannot, however, be reduced to the simple naturalness of the individual natural inclinations and their goods, ends, and acts. Such a reduction would be equivalent to reducing the genus moris of an act to its genus naturae, to confusing the "moral object" and the "physical object" of a human act. The natural law, as the abovequoted text by Leo XIII affirms, inclines man ad debitum actum et finem and thus makes the eternal law itself effective. This would not be possible without the regulating and ordering act of reason. 62 STh I-II, q. 18, a. 5: '1n actibus autem lmmanis bonum et malum dicitur per comparationem ad rationem." That this principle of St. Thomas should be taken seriously was demonstrated years ago with clarity and in a way that is still valid by L. Lehu, La raison, regle de la moralite d'apres Saint Thomas (Paris: J. Gabalda et Fils, 1930). 63 STh I-II, q. 18, a. 10: "species moralium acruum constiruunrur ex formis prout sunt a ratione conceptae" (see also U Sent., d. 39, q. 2, a. 1). 64 Because human acts are voluntary acts, the object is always an object of the will. However, it is essentially and solely reason that presents the will with its object. For this reason, the goodness of the will, because it depends on its object, specifically depends on reason (STh I-II, q. 19, a. 3). The movement of the will cannot refer itself to something good without this being previously grasped by reason (ibid., ad 1). Rightly, the movement towards the due end (finis debitus) completely depends on the cognition of the end of which only reason is capable. Furthermore, any object belongs to the genus moris and is effective in causing moral goodness in the act of the will exactly to the extent to which it falls under the order or reason: "Ratio enim principium est humanorum et moralium actuum" (STh I-H, q. 19, a. l, ad 3). THE COGNITIVE STRUCTUREOF THE NATURAL LAW 29 C) The Natural Law as Practical and Preceptive Knowledge of Human Good In this way it becomes possible to do full justice to the preceding statements on the law in general and on the natural law in particular. According to St. Thomas, the law in general is what regulates human acts. This, however, is the task of reason: it is for reason to order to an end. For this reason, the law is aliquid pertinens ad rationem. 65 At a more concrete level, by "law" is meant the "universal practical judgments (propositions) of practical reason, ordered to acting. "66 In this sense, the natural law, too, est aliquid per rationem constitutum, and, like every judgment, is an opus rationis.67 To be precise, the natural law is a conjunction of the natural judgments of practical reason, which in a preceptive or imperative way express the good to be done and the evil to be avoided in the sphere of the ends indicated by the natural inclinations. The conjunction of the natural inclinations, ordered by reason, constitutes and defines human identity, and thus also the natural moral order of man. It is thus the natural law that makes "human nature" and that order of reason which is normative for action appear. As a result, the manifestation of the foundations of the objective moral order already presupposes the cognitive presence of the natural law. This last cannot be deduced from such an order since it is the natural law itself that makes this order known. The natural law, in concrete terms, is the set of judgments of practical reason that contains what is "by nature reasonable." In truth, within these judgments there is a certain complexity: there are judgments that are immediately evident and carried out with natural spontaneity (the first principles or very common principles, such as the golden rule), 68 and others that, through the inventive principle of natural reason, are not deduced from the q. 90, a. 1. ad 2: "propositiones universales rationis practicae ordinatae ad actiones." 67 STh I-II, q. 94, a. 1. 68 Cf. In duo praecepta caritatis et in decem legis praecepta, prologus I: "Nullus enim ignorat quod illud quod nollet sibi fieri, non faciat alteri, et cetera talia." 65 STh I-II, 66 Ibid, 30 MARTIN RHONHEIMER first but are discursively found in the light of the first principles (the secondary precepts of the natural law, which already refer to types of action such as "respecting other people's property, "don't kill," etc.). 69 These preceptive imperative practical judgments (which those of prudence, at the level of particular judgments, are) move towards acting (or dissuade from acting). In this sense, the precepts of the natural law are not properly "norms" that, when applied by the moral conscience, regulate the freedom of the person and his acting. These practical judgments of natural reason, which form a natural law, are rather the foundation and the point of departure of acting as moral acting. As I have already observed, these judgments or forms of practical knowledge constitute the person as a practical and moral subject, both at a general level and in the various spheres of human action, corresponding to the various moral virtues. For this reason St. Thomas Aquinas can state that "the first orientation of our actions to an end takes place through the natural law. "70 This means that without the natural law there would not be in the least any acting; every acting pursues an end, and without such pursuing, action would not take place. Conjointly, however, the natural law is a set of judgments about the fundamental goods that should be achieved, the goods that define the order of moral good which is an ordo rationis. Therefore, speaking formally and in a proper way, the natural law is not known on the basis of a moral order, or deduced from it; rather, it is precisely the natural law that constitutes and realizes the moral order as an ordo rationis-it is this order that manifests 69 For the inventio of the secondary precepts I refer the reader to Natural Law and PracticalReason, 267ff. Saint Thomas's texts on the primary and secondary precepts of the natural law were helpfully assembled in R. A. Armstrong, Primary and SecondaryPreceptsin Thomistic Natural Law Teaching (Den Haag: Martinus Nijhoff, 1966). The inventio of the secondary principles, however, is not a deductive and instantaneous process but presupposes concrete experience and takes place in time, that is to say, in a certain sense it possesses a narrative structure. See my "Praktische Vernunft und das 'von Natur aus Verniinftige,'" 511ff.; and Die Perspektiveder Moral, 253ff. (or La perspectivade la moral, 301ff.). 70 STh I-II, q. 91, a. 2, ad 2: "nam omnis ratiocinatio derivatur a principiis naturaliter notis • . . • Et sic etiam oportet quod prima directio actuum nostrorum ad finem, fiat per legem naturalem." THE COGNITIVE STRUCI1JRE OF THE NATURAL LAW 31 "human nature" in its morally normative meaning. The order of reason, however, is none other than eternal law which is manifested through and in the natural law because the natural law is the eternal law, present in human practical reasonableness. D) The Natural Law and the Moral Conscience It is important to emphasize that the intellect, as a spiritual faculty, has the capacity to reflect in an unlimited way on its own acts. The human intellect reflects on these natural judgments of practical reason, thereby discovering this moral order and this "human nature" as an object of the speculative intellect, as an anthropological reality full of normative meaning. But great care should be employed here: this normativeness is not deduced from or read in a nature that is "in front of" knowing man-on the contrary, it is the original normativeness of practical reason itself which, due to its location within the dynamics of the natural inclinations, explains itself through natural judgments on the human good. These last form an original, irreducible, and fundamental experience. It is an experience in which simultaneously the human being (the anthropological identity of the subject) and the normative aspect of this human identity manifest themselves. In analyzing the level of reflection on this moral experience, one comes to a second concept of "natural law," not in the formal but in the material sense. This derived concept refers solely to the propositional contents of these judgments of practical reason and the corresponding moral experience, which in a proper and primary sense are the natural law. Through reflection of the intellect on its own practical and ordering acts a habitus of forms of normative moral knowledge is formed, which is the natural law as a habitus of the principles and foundation of "moral science" (this habitus of the first principles is also called synderesis).71 These forms of knowledge are normative articulations, or moral 71 Cf. STh I-II, q. 94, a. 1, ad 2: "synderesis dicitur lex intellectus nostri, inquantum est habitus continens praecepta legis naturalis, quae sunt prima principia operum humanorum." Cf. also STh I, q. 79, a. 12. 32 MARTIN RHONHEIMER norms, which, in virtue of the natural way they manifest themselves in the first judgments of practical reason, appear in the conscience as the voice of a truth to which the subject must subject himself, and which are applied to concrete acting through the judgment of the conscience. I wiH confine myself here to this brief reference to this question, to which I have dedicated a more detailed exposition elsewhere. 72 E) The Natural Law and Natural Right We have seen that the natural law is a combination of the judgments of practical reason which in a preceptive or imperative way express the good to be done and the evil to be avoided in the sphere of the ends indicated by the natural inclinations. These inclinations are many in number and arise from all the other strata of the complex nature of the human person. Saint Thomas Aquinas speaks about the indination to conserve oneself: this is a basic tendency, but when pursued within the order of reason it is pursued in concordance with other needs (e.g., of justice, of benevolence towards one's neighbor, of respect for common good). "Conserving oneself," as something contained within the natural law, is not only the simple natural indination in its pure naturalness" Man is also able to sacrifice his own life for the good of others. The same is applicable to the other example mentioned by St. Thomas: the sexual inclination between a man and a woman" Grasped by reason as a human good and made the content of a practical judgment, the object of this inclination is more than an 72 Cf. for example La prospettiva della morale, 255ff. This approach agrees with the famous passage in Gaudium et spes, n" 16: "Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey" Its voice, ever calling him to love and to do what is good and avoid what is evil. " " . For man has in his heart a law inscribed by God." In the encyclical Veritatis splendor, n" 60, the connection between conscience and the natural law is explained further. Natural law is the norm of truth for the conscience: "The judgment of conscience does not establish the law; rather it bears witness to the authority of the narural law and of the practical reason with reference to the supreme good"; and n. 61: "The truth about moral good, as that truth is declared in the law of reason, is practically and concretely recognized by the judgment of (emphasis added). THE COGNITIVE STRUCTUREOF THE NATIJRAL LAW 33 inclination found in pure nature. It is more than that which, in the words of the Roman jurist Ulpian, "nature has taught all animals. " 73 This natural inclination, grasped by reason and pursued in the order of reason-at the personal level-becomes love between two people, love with the requirement of exclusiveness (uniqueness) and of indissoluble faithfulness between persons (i.e., it is not mere attraction between bodies!), persons who understand that they are united in the task of transmitting human life. Faithful and indissoluble marriage between two people of different sexes, united in the shared task of transmitting human life, is precisely the truth of sexuality; it is sexuality understood as the human good of marriage. Like all the other forms of friendship and virtue, this specific type of friendship, which is what marriage is, is not found "in nature." It is the property and norm of a moral order, to which man has access through the natural law as an ordinatio rationis. What, according to Ulpian, "nature has taught all animals" is certainly a presupposition for human love as well, but it does not yet express adequately the natural moral order to which this love belongs. As a result, in the case of man, what "nature has taught all animals" is not even sufficient to establish any dutifulness or normativeness. If the animal does what its nature, endowed with a richness of instincts, prescribes to it, it performs its function. Can the same be said of man? The most important inclinations, however, arise immediately from the spiritual nature of man. Saint Thomas mentions the natural inclination to know the truth, in particular the truth about God, and the natural inclination to live in society. Man naturally flees from ignorance and tries not to offend other men. Indeed, it is the natural law that constitutes the first notions of justice-as of every other virtue-and that also makes possible the notion of "natural right" (i.e., something that is "right by nature"). Any 73 In the first book of his Institutiones (D. I, I, I, 3): "Ius naturale est, quod natura omnia animalia docuit." For Ulpian, one example (cited by St. Thomas in SI'h I-II, q. 94, a. 2), is "maris atque feminae coniunctio, quam nos matrimonium appellamus" (quoted following M. Bretone, Geschichte des romischen Rechts: Von denAnf iingen bis zu Justinian [2d ed.; Munich: C. H. Beck, 1998], 232 and 337). MARTIN RHONHEIMER 34 notion of a natural right already presupposes the active presence or the deployment within the subject of the natural law. If the natural law, and with it the ordinatio of practical reason, did not form principles of justice, nothing could ever be perceived as something that was "naturally right." Every notion of "right" would be derived from a positive law, whether divine (revealed), or human. The notion of what is "right" would be nothing, as Thrasymachus says, but the self-interest and advantage of the strongest. 74 Not only would the condition of a "natural right" be unthinkable, but so too would be the very concept of "right" as "good" and as "due to somebody." At times, the terms "natural law" and "natural right" are used indistinctly and as synonyms. This, however, causes a great deal of confusion. For the premodern tradition, the ius naturale is the same as iustum naturale: a "right" is that which on the basis of a certain fittingness is due to somebody. For example, in the case of an action of buying and selling, every commodity has its price; while the concrete price, according to St. Thomas Aquinas, can be established in line with convention, the fact that a commodity has a price, and thereby a "commodity-price" relationship, is natural. To pay a price thus corresponds to the ius naturale. 75 The modern concept of "right" is semantically somewhat different: it becomes above all else a subjective right, a claim or right "to something. "76 This is what is meant by the rights of freedom and, in general, 74 Plato, The Republic, 338E-339A. 75 Cf. STh 11-11, q. 57, a. 2: "ius sive iustum, est aliquod opus adaequatum alteri secundum aliquem aequalitatis modum. Dupliciter autem potest alicui homini aliquid esse adaequatum. Uno quidem modo, ex ipsa natura rei: puta cum aliquis tantum dat ut tantum recipiat. Et hoc vocatur ius naturale." The second form is that called ex condicto, which can be either private or public. The former is held to correspond to the lex dicta, known in Roman law and belonging to the ius privatum, to be distinguished from the ius publicum. The distinction is not in concordance with the modern distinction between public law and private law (cf. G. Dulckeit, F. Schwarz, and W. Waldstein, Romische Rechtsgeschichte [Munich: C.H. Beck, 9 1995], 49f.). 76 In the view of Michel Villey, the genesis of the modern concept of subjective right goes back to Ockham: M. Villey, "Droit subjectif I (La genese du droit subjectif chez Guillaume d'Occam)," in idem, Seize Essais de Philosophie de Droit dont un sur la crise universitaire (Paris, 1969), 140-78. However, the differences are sometimes exaggerated. For a contrasting view see J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980). THE COGNITIVE STRUCTUREOF THE NATURAL LAW 35 human rights. The ius naturale, as we find it in the Thomistic tradition, is a given fact, a fittingness secundum naturam, the foundation of the order of justice. The ius is specifically the object of the virtue of justice (which is defined as the "firm and constant willingness to give each person his due"). For this reason as well, the terms "natural law" and "natural right" should be distinguished. The natural law does not refer only to justice concerning acts in relationship with other people; it regulates all the moral virtues, including the acts that concern the agent subject himself, like those that belong to the sphere of temperance or fortitude. It is, however, of the greatest importance to underline that the notion of "ius" is not self-founding and is not even simply "given" in nature. Like all moral notions, the notion of right is constituted specifically within the deployment of the natural law. What is a "natural given fact," which is relevant in some aspects and presupposed for the formation of the natural law, is certain relations of fittingness (such as, for example, the famous coniunctio maris et feminae as a natural relation of adaequatio, or the relationship between "commodity" and "price," and also many other relations of fittingness and Sachverhalte, which are intuitively graspable "from the nature of things," as we are taught by the classic Roman jurists of the epoch of the Principate). 77 However, the normativeness of these "relations of fittingness" or adaequationes and the very notion of due (debitum) come from practical reason, which alone is able to order these relations of fittingness towards the end of virtue, which is the good of the human person. Certainly, these notions come from natural reason, and in this sense are they indeed natural. They are natural in the same sense in which the natural law and the reason that constitutes it are natural. Through it, all these notions that belong 77 Cf. W. Waldstein, "Naturrecht bei den klassischen romischen Juristen," in Das Naturrechtsdenken heute und morgen: Gedlichtnisschrift fur Rene Marcie, ed. D. Mayer-Maly and P. M. Simons (Berlin: Duncker & Humblot, 1983), 239-53; and see by the same author the detailed study "Entscheidungsgrundlagen der klassischen romischen Juristen," inAufstieg und Niedergang der romischen Welt: Geschichte und Kultur Roms im Spiegel der neueren Forschung, ed. H. Temporini and W. Haase, sect. II, Principat, vol. 15, ed. H. Temporini (Berlin and New York: Walter de Gruyter, 1976), 3-100. 36 MARTIN RHONHEIMER to the order of justice are constituted. What St. Thomas states in general regarding the relationship between law and right can also certainly be applied to the relationship between the natural law and natural right, that is to say, "the law is not, in a proper sense, right, but rather that which in a certain sense ensures that what is a right is a right. "78 A natural right, therefore, is not properly a normativeness deduced from nature or "read" in it, but rather the result of a reading of the natural structures in the light of the principles of the natural law. Bearing this in mind is important in order not to fall into a vicious circle or to become guilty of a petitio principii when establishing arguments based upon the natural law. Notions such as that of "something due" to one's neighbor, of "not offending," of "not harming," the notion itself of reciprocity (expressed by the golden rule) and of equality (of which every form of justice is a determined type) come from this natural inclination to live in society with other men, to communicate with them, to relate to them with acts of exchange and distribution, etc. Without the natural law there would be no notion of "a right" and of "something being right," since every notion of normativeness or dutifulness in relations between men would be absent. At this completely fundamental level, too, "the law is not, in a proper sense, right, but rather that which in a certain sense ensures that what is a right is a right" applies. Furthermore, the notion of "due" and of "right" (ius) as well, which is inherent in every relationship of justice, is not yet sufficient. In order that what is due can fall under the principle of the natural law (bonum faciendum, etc.), the "right" must manifest itself as a "good." Indeed, St. Thomas Aquinas says that "to give somebody what is due has the property of a good. " 79 One needs, therefore, to trace the notion of right and due back to the notion of good or of bonum humanum. Why is the "right" a human good for him who in this way places himself in a relationship with another person? Because of the golden rule, 78 STh II-II, q. 57, a. 1, ad 2: "lex non est ipsum ius, proprie loquendo, sed aliqualis ratio iuris." 79 STh 11-11, q. 81, a. 2: "reddere debitum alicui habet rationem boni." THE COGNITIVE STRUCTURE OF THE NATURAL LAW 37 which forms part of the first principles of the natural law, and which for its part presupposes the fundamental recognition of another person as being "equal to me." Such a recognition, the foundation of every justice, is once again the work of reason. 80 IV. TO UNDERSTAND THE NATURAL LAW IN THE CONTEXT OF ETHICS OF THE VIRTUES I am convinced that from the Thomistic conception of the natural law are derived a multitude of consequences of great importance and fruitfulness for moral philosophy, in terms of both its basic approach and its internal structure. 81 Here I will concentrate on some aspects that appear to me of particular pertinence in the present context. A) The Natural Law and the Ethics of the Virtues Were we to dismiss the rather simplistic idea that the natural law is simply a conjunction of norms to be read in a natural order that is "in front of our eyes" and to realize, instead, that the natural law is specifically something constituted in the natural judgments of the natural reason of each man, we would then understand better that the natural law is really "written and engraved" in the human soul. We would recognize as well the ontological meaning of the natural law, namely, that it is an expression of human nature and the moral order rooted in this nature. Indeed, this law brought forth by the practical reason of the subject is specifically human nature in its normative dynamics: it is simultaneously the self-possession of the subject-a real autonomy, which is participated theonomy-and an objective 8° Cf. M. Rhonheimer, "Sins against Justice (Ilallae, qq. 59-78)," in S. J. Pope, ed., The Ethics of Aquinas (Washington D.C.: Georgetown University Press, 2002), 290. For the cognitive genesis of the principle of "justice" see also La prospettivade/la morale, 242ff. 81 Cf. the introduction to La prospettiva de/la morale, and for a more detailed analysis the introduction to the German edition Die Perspektiveder Moral: PhilosophischeGrundlagender Tugendethik (Berlin: Akademie Verlag, 2001). 38 MARTIN RHONHEIMER norm which, in the face of the moral conscience, imposes itself with the force and the authority of truth. To conceive of the natural law, as St. Thomas Aquinas does, as a set of natural principles of practical reason opens up the road to understanding the intimate connection between the precepts of the natural law and the moral virtues. Indeed, the moral virtues, too, are essentially a type of ordinatio rationis:as habitus they are the order of reason, "sealed and imprinted" in the concupiscible (temperance) and irascible (fortitude) inclinations and in the rational appetite called "will" Gustice). 82 Given that man is essentially formed by a rational soul, he has a "natural inclination to act according to reason," and this is to live the virtues whose acts are, therefore, imposed by the natural law. 83 The moral virtues are the fulfilment of the natural law at the level of concrete acting since they are the habitus of choosing what is good for man at a concrete level. 84 For this reason, the precepts of the natural law are precisely the principles of prudence. 85 The "truth of subjectivity," of which the natural law at the level of the principles is the foundation, is ultimately guaranteed through the possession of the moral virtues, whose function, as Aristotle taught us, lies in ensuring that there appears as good to the subject that which is also good according to truth. 86 The individual virtues do this by deploying the "appetitive" part of the human being, the sense tendencies, and the will, according to the requirements of 82 Cf. De virtutibus in communi, q. un., a. 9: "virtus appetitivae partis nihil est aliud quam quaedam dispositio, sive forma, sigillata et impressa in vi appetitiva a ratione." 83 Cf. STh 1-11, q. 94, a. 3: "Unde cum anima rationalis sit propria forma hominis, naturalis inclinatio inest cuilibet homini ad hoc quod agat secundum rationem. Et hoc est agere secundum virtutem.Unde secundum hoc omnes actus virtutum sunt de lege naturali: dictat enim hoc naturaliter unicuique propria ratio, ut virtuose agat." 84 See Rodriguez Luiio, La see/ta etica: II rapportofra libertae virtu (Milan: Edizioni Ares, 1988). 85 Cf. Rhonheimer, PraktischeVemunft und Vemunftigkeit der Praxis, 530ff. 86 Aristotle, Nicomachean Ethics, III, 4, 1113a29f.: "The person who is virtuous, in fact, judges every thing rightly and in each thing there appears to him what is true." For the importance of this principle within Aristotelian ethics taken as a whole see G. Bien, "Die menschlichen Meinungen und das Gute: Die Losung des Normproblems in der aristotelischen Ethik," in M. Riedel, ed., Rehabilitierungder praktischenPhilosophie,I (Freiburg: Verlag Rombach, 1972), 345-71. THE COGNITIVE STRUCTURE OF THE NATURAL LAW 39 reason. In this way, the secundum rationem agere,87 founded in the natural law, is fulfilled in the moral virtues, which also manifest their function of giving full efficacy to the natural law. The intimate nexus between the natural law and moral virtue makes clear why it is that vice is one of the principal causes of the obscuring of the natural law in man. The Thomistic conception thus opens the road to an approach in ethics and moral theology that is centered not simply on the "law" but rather on the virtues. B) The Permanence of the Natural Law and Contemporary Questions of Respect for Human Life At the present time there is no absence of voices that affirm that the natural law, and with it respect for natural right, has fallen into oblivion or has become irrelevant both for individuals and for political society and the laws on which that society is based. In this view, the lack of respect for, and even the denial of, the natural law is to be found in the widespread diffusion of contraceptive practices, abortion, and technologies of reproduction (which give rise to the serious problem of human embryos frozen while "waiting" to be used in a "useful" way, the attempts to use them for the attaining of stem cells for medical research, therapeutic cloning, etc.). In my opinion, this diagnosis is not entirely correct. It seems to me important to test it well in order that the subsequent treatment be well chosen. Indeed, if one were to argue that the natural law is a given fact, which is easily and by self-evidence decipherable in the "nature of things" in such a way that those who are not capable, or deny the existence, of such a "law of nature" would be mere deniers of an evident truth, then the only therapy would be to attempt to overcome them through an insistent affirmation of what they deny. This seems logical: the person who denies what is evident and intuitively knowable should not be answered with arguments but rather with blame, rebukes, and indignation. 87 Cf. STh 1-11, q. 94, a. 3 (quoted above). 40 MARTIN RHONHEIMER I think, however, that things are infinitely more complex. I do not believe that our contemporaries deny what is evident and intuitively knowable. I do not believe, therefore, that they specifically deny the fundamental precepts of the natural law. Indeed, in relation to what is evident (viz., the first precepts of the natural law), there is at the present time a surprising consensus. This consensus bears witness to the presence of the natural law in the consciences of men. Otherwise, the fact that forms of behavior such as killing innocent people, adultery, lying or theft, hating one's neighbor, envy, rash judgments, defamation, and many similar things are generally seen as being dishonest would be incomprehensible. Obviously, this does not change the fact that in reality innocent people are killed, slander is used for private and public purposes, and theft, hatred, and defamation and so many other kinds of injustice are commonplace. But this, because of human wickedness and weakness, has always been the case. Right up until our days, these forms of behavior have always been disapproved of by people who are regarded as being endowed with healthy judgment. Without the effective presence of the natural law in the hearts of men this would not be possible, and indeed the very notions of "adultery," "murder," "lying," "theft," etc., all of which imply that a person possesses a concept of "justice," which itself is a work of the natural law, would not be possible. It is certainly true that in contemporary culture there exists a widespread tendency to reject, in principle, an "objective" and universal morality. This phenomenon of ethical individualism and subjectivism at a personal level, is, however, linked to another that from certain points of view is in opposition to it: today in public life and in the assessment of both individual and institutional human action in the social, political, and economic fields, more than at any previous time in history, moral norms (under the name of "human rights") which declare themselves to be universal and impose themselves with the force of their objective value, are considered the obligatory point of reference. This seems to be another sign of the fact that the natural law is far from having fallen into oblivion. THE COGNITIVE STRUCTIJRE OF THE NATURAL LAW 41 On the other hand, even among the many defenders of the existence of a natural law there are discordant opinions as to what its contents really are-that is to say, as to what human reason naturally points out to us as being "good" and "a matter of duty." A consensus exists only at the level of the most important shared and specific precepts. But there exists a whole level of so-called "remote" precepts which, according to St. Thomas, are difficult to understand for most men, and which, in his view, can be understood without error only by "the wisest." 88 Indeed, it is at this level that there exist among believers and nonbelievers alike great differences of opinion. Issues such as contraception, divorce, even abortion from certain aspects (i.e,, when it is practiced with a contraceptive mentality), 89 the prohibition of therapeutic cloning or in vitro fertilization, are, from the point of view of the "natural law," rather remote subjects, whose intrinsic moral quality is at times difficult to perceive. On the other hand, it is easy for everyone, even today, to understand the disordered character of killing, of adultery, of lying and of theft, of hatred for one's neighbor, of envy, of rash judgments, of defamation, etc.-forms of behavior and inner attitudes to which the principal precepts of the natural law refer. With technological progress the possibilities of intervening in nature-in that which is "given" and presupposed-are constantly increasing. The power of man is being extended to what in past periods was simply something to be accepted as "natural" or as "immutable" and that presented itself to man in the form of a destiny to which he had to bend in docile fashion. We now have the power to change-at least in many aspects-the "human condition," to modify it in line with our perspectives (which are not necessarily illicit) of happiness and well-being (one may think here of reproductive technology, genetics, etc.). Finally, in modern society the autonomy of the individual has grown to an Cf. STh I-II, q. 100, a. 1. Cf. M. Rhonheimer, "Contraccezione, mentalita contraccettiva e cultura dell'aborto: valutazioni e connessioni," in R. Lucas Lucas, ed., Commento interdisciplinare alla «Evangelium vitae» (Vatican City: Libreria Editrice Vaticana, 1997), 435-52. See also M. Rhonheimer, "Contraception, Sexual Behavior, and Natural Law: Philosophical Foundation of the Norm of 'Humanae Vitae,'" The Linacre Quarterly 56, no. 2 (1989): 20-57. 88 89 42 MARTIN RHONHEIMER extent that it never had before. The identity of persons is not inexorably defined in terms of determined social roles, which are preestablished for insertion into a specific historical, social, or family context. At the level of principle, this process should be regarded as a great gain. But it is logical that this development also renders certain absolute moral prohibitions (at least as regards their social utility) less intelligible. Where the social context no longer predefines determined roles for every individual person or for groups of people (defined, e.g., according to their sex) it becomes more difficult to understand certain moral values and norms which in the past were supported by the processes of socialization and the general configuration of society and by the constrictions imposed by the shared circumstances of life. Let us take a contemporary example: experimentation on human life for beneficial motives, such as the treatment of illnesses, has always been a dream of men, and not only of scientists. Today it seems that we are able to do this, and the pressure to do so increases not because the natural law is no longer recognized but because the power of man over nature has increased, generating challenges hitherto unknown. The person who today opts for experimentation on human embryos and in this contexts affirms emphatically that an embryo is not yet a being with the dignity and the rights of a human person, does not deny the natural law but specifically (albeit implicitly) confirms it. In fact, he does not want to exploit a human person for a good end, and thus is forced to deny that an embryo has the status of a person. The error here is not connected with the natural law. It is not properly an error of practical knowledge, but is first of all an error of a theoretical kind. The case in question involves an erroneous statement about reality-an error of metaphysical anthropology which certainly causes a grave injustice (viz., the exploitation of certain human individuals for the benefit of other people). Nobody wishes to advocate that the personal dignity of some human beings may be licitly violated in order to benefit the majority; this would clearly contradict the THE COGNITIVE STRUCTIJRE OF THE NATURAL LAW 43 natural law. Instead, one simply denies these human beings the status of a person, so as to "exempt" them from what natural law commands. In other cases, however, such an error can be due to a real and proper act of discrimination arising from an unjust will which searches above all else for its own well-being, self-determination, or the achievement of personal project-often perhaps licit but pursued at the expense of other people. In this context of injustice, the error of not recognizing the dignity and the rights of unborn human beings, even in the embryonic form of human life, expresses itself as an authentic practical error-that is to say, as injustice. 90 To be habitually involved in such an error causes the obscuring of the natural law in one's own heart, and gradually renders ineffective the light of natural reason in guiding one's own action towards the true good of man. To appeal to the self-evidence of the natural law, or natural right, cannot be of great help for those people who are in this way involved in evil. At the same time, those who out of good faith or simple ignorance (or the pressures of the environment in which they live) need to be instructed in the truth will find appeals to presumed forms of self-evidence which are not forthcoming (except in certain conditions) insufficient. In other words, very many, perhaps the majority, of the moral problems that are disputed today refer to matters that one would say have to do with precepts of the natural law that are rather "remote." At this level, there is no self-evidence. The inventive process of natural reason can be seriously misled by the concrete forms of conditioning to which the subject is exposed in his social environment, by his biographical or cultural context, and by the pressures and material constraints of the world of work. One may think here, for example, of children and young people who grow up in a society in which divorce and thus "articulated" families ("children with four parents," etc.) have become the norm. In such a situation appeals to self-evidence cannot be of much help. 90 See M. Rhonheimer, "Fundamental Rights, Moral Law, and the Legal Defense of Life in a Constitutional Democracy. A Constitutionalist Approach to the Encyclical Evangeliurn Vitae," AmericanJournal of Jurisprudence43 (1998): 135-83. 44 MARTIN RHONHEIMER One wants on the one hand arguments, and on the other (for those people who have the grounding to accept it), instruction by means of a recognized authority. But this is not all. It should also be mentioned that the selfevidence of certain requirements of the natural law can be justified only in the context of Christian faith and with the grace that is conferred within the context of a Christian life to live out all the requirements of the natural moral order within the perspective of the mystery of the Cross. This order, even though it is in itself intelligible to everyone, includes for the actual existing man some difficulties and has at times a paradoxical character that renders the human good unintelligible. Only in the light of the faith does the natural law also recover all its intelligibility and humanity. This is not because it is in itself not rationally knowable, but because outside the order of the redemption this intelligibility can often seem illusory and even a burden. It may seem to involve inhuman requirements that are incompatible with the desire for happiness inserted into the human heart. 91 Moreover, for the natural law to reveal itself as a part of that truth which makes us free, what is needed is a patient work of diffusion of good, and of the light of faith, and a subsequent permeation of social structures with the spirit of Christ. 91 On this subject see M. Rhonheimer, "Is Christian Morality Reasonable? On the DifferenceBetweenSecular and Christian Humanism," Anna/esTheologici15 (2001):529-49; "Uber die Existenz einer spezifisch christlichen Moral des Humanums," Internationale katholische'Zeitschrift'Communio' 23 (1994): 360-72; Natural Law and PracticalReason, 547ff. The Thomist 67 (2003): 45-71 A BRIEF DISQUISITION REGARDING THE NATURE OF THE OBJECT OF THE MORAL ACT ACCORDING TO ST. THOMAS AQUINAS STEVEN A. LONG University of St. Thomas St. Paul, Minnesota PREFACE HIS ESSAY PROPOSES a reconsideration of the teaching of St. Thomas Aquinas regarding the nature of moral intention, and of the object of the moral act. The occasion for rethinking this doctrine is what I consider to be errors about intention and the moral object latent within Cajetan's account of self-defense by private citizens in his commentary on the Summa Theologiae of St. Thomas Aquinas--errors that have recently become a full-fledged explicit doctrine in the works of John Finnis, Germain Grisez, and Joseph Boyle. In a recent article in The Thomist, 1 these authors seek to illustrate their action theory with the prime example of craniotomy. I will first briefly consider craniotomy, and indicate two criticisms that I will pursue through the rest of the paper. Then I will follow the thread of these authors' argument back to John Finnis's account of killing in self-defense, and even further to the standard account of double effect and killing in self-defense most prominently articulated by Cajetan in his commentary on St. Thomas's treatment of the matter in STh II-II, question 64, article 7. Following this I will set forth the outline of an account of 1 John Finnis, Germain Grisez, and Joseph Boyle," 'Direct"' and 'Indirect': A Reply to Critics of Our Action Theory," The Thomist 65 (2001): 1-44. 45 STEVEN A. LONG 46 intention, the moral object, and double effect contrasts sharply both with the standard schema derived from Cajetan with new law theory. Both as a systematic account, and as an interpretation of the teaching of Aquinas, this outline seems to me to be superior. L THE ARTICLE To illustrate their analysis of intention and the moral object, Finnis, Grisez, Boyle select the case of craniotomy. They write: "What matters is whether the kiHing is brought about as an end sought (obviously not) or as a chosen means-in other words, whether it is the object, in the sense defined in Veritatis splendor, of the act of the surgeon who performs the craniotomy." They point out that the species of the object is distinct from the merely natural species of an because the moral character of an act cannot be reduced to its merely physical character. Here the authors rightly cite Thomas: As Aquinas regularly puts it, the species of a human act, which (when measured reason's requirements) settles the moral character of the act as good or right or wrong, is not its species in genere naturae the order of nature) but its species in genere moris (in the order of human deliberating and choosing). 2 As the saying has the man who pushes an elderly lady into the way of an oncoming motor car and the one who pushes her out of the way are both men who push ladies around. The physical character act isn't enough to provide us its moral type or species. But here the authors press even further. They quote Stephen Brock's criticism of their teaching in a footnote. Brock writes as follows: Thomas's view would allow us to suppose that the surgeon is not aiming at the on fetus's death, not crushing the skull in order that the fetus die. Thoma.s's view-regardless of his aim, his act is aimed at producing the crushed skull of an innocent person; and surely it is to that extent unjust .... 2 fuid., 23. THE NATURE OF THE OBJECT OF THE MORAL ACT 47 How unjust is it? Well, what is the value of an intact skull? The person's life depends on it. 3 The authors comment: But Brock fails to show that the object of the surgeon's chosen act is better described as "producing the crushed skull of an innocent person" than as "cranium-narrowing for the purposes of removal from the birth-canal"-a description he set aside as "a merely abstract description" or "redescribing.'"' Yet how we describe the act does not alter the factual proposition that directly to crush the fetus's skull is by this means to kill him. In the more standard account indebted to Cajetan, it is customary to distinguish craniotomy from the removal of a cancerous gravid uterus by pointing out that the latter act does not directly kill the fetus, and that the uterus in this case would need in any event to be removed in order to save the mother's life. So often a distinction is made between indirect killing-the type of act in which the cancer-ridden fetus is indirectly caused to die-and direct killing, for example by crushing the skull in craniotomy. Opposing this customary view, Finnis, Grisez, and Boyle argue that this difference does not show that craniotomy is direct killing. A counterexample makes this clear. All those acts of self-defense of the kind that Aquinas shows need involve no intent to kill and no direct killing are nonetheless performed "upon" the person killed. 5 Here they believe they have found a pivotal point of connection between the traditional view of intention and moral object in the case of self-defense and their own general account. This is the launching pad of their defense. Responding to a different critic for whom, again, the issue of "redescription of the act" is central, they argue that 3 Stephen L. Brock, Action and Conduct: Aquinas and the Theory of Action (Edinburgh: T & T. Clark, 1998), 204-5 n. 17; quoted in Finnis, Grisez, and Boyle, "Reply to Critics," 26 n. 38. 4 Finnis, Grisez, and Boyle, "Reply to Critics," 26 n. 38. 5 Ibid., 28. 48 STEVEN A. LONG What counts for moral analysis is not what may or may not be included in various descriptions that might be given by observers, or even by acting persons reflecting on what they have done, but what is or is not included within a proposal developed in deliberation for possible adoption by choice. Only the truthful articulation of that proposal can be a description that specifies an act for the purposes of moral analysis. Our contention, which Flannery fails to discuss, much less refute, is that when someone chooses to do a craniotomy on a baby to save his or her mother's life in an obstetrical predicament, the morally relevant description of the act would not include killing the baby.6 II. RESPONSE At this juncture I want to unveil two criticisms which I will pursue throughout the rest of my remarks. First, while the moral species cannot be reduced to the physical species, neither can the nature or physical species of the act be excluded as one of the essential causal elements in determining the moral species, because the nature of the deed done constitutes what St. Thomas Aquinas calls "the matter of the act." In their Thomist article, Finnis, Grisez, and Boyle introduce a whole series of examples, ·whose basic structure and point are predominantly the same. In these examples, intention is construed as a purely logical entity or proposal. But intention regards the raw materials of our action, which are not pure logical entities, but have a natural character. The essential matter of the act-the physical character of what is done-cannot simply be excluded from the object. As Thomas puts it, "The exterior action is the object of the will, inasmuch as it is proposed to the will by the reason, as good apprehended and ordained by the reason. "7 So the object of the will is the exterior act itself-under a certain ratio, to be sure, but nonetheless truly and wholly present. The essential matter of the act, the physical character of what is done, may not be excluded. Else, all we need do in order to change the nature of the object of one and the same act is to change our descriptions. Hence in craniotomy "the baby's death is a side effect of changing Ibid., 29. STh I-II, q. 20, a. 1, ad 1: "Dicendum quod actus exterior est obiectum voluntatis, inquantum proponitur voluntati a ratione ut quoddam bonum apprehensum et ordinatum per rationem." 6 7 THE NATURE OF THE OBJECT OF THE MORAL ACT 49 the dimensions of its skull"; hence Finnis, Grisez, and Boyle argue that when one knowingly blows up an aircraft carrying passengers in order to obtain insurance payment, "the passengers' death, being outside the proposal, is not intended by the bomber"; and so on. One must beware of angelism regarding the moral species of human actions. Saint Thomas Aquinas is well known for teaching that the circumstances, object, and end of any act all contribute to its good or evil (STh I-II, q. 18, a. 4), and that any defect in circumstance, object, or end is sufficient to render an action bad (STh I-II, q. 20, a. 2). 8 With respect to the object, the defect may be in its matter or in its form. The essential matter of the act must always be included in the moral object, and is one-albeit only one-causal element in determining the moral species. The object is formal with respect to the individual act but this does not mean that its essential matter is or may be excluded from its definition. 9 While the primary goodness of an act is derived from its object (STh I-II, q. 18, a. 2) an accident/circumstance can augment the good or evil of the act, and can add species to the act either by causing a new condition to be considered in it (e.g., woundedness in a limb making an escape effort by a prisoner to be more or less seriously flawed), or because the circumstance becomes the object of a further act (De Malo, q. 2, a. 6, ad 2 and ad 9). But if circumstance is important, the essential matter of the act is even more important. One may say that there are two aspects of any moral action: the aspect that makes it preferred by the agent (its relation to the end sought) and the integral nature or essential 8 STh 1-Il, q. 20, a. 2: "for a thing to be evil, one single defect suffices, whereas, for it to be good simply, it is not enough for it to be good in one point only, it must be good in every respect. If therefore the will be good, both from its proper object and from its end, if follows that the external action is good. But if the will be good from its intention of the end, this is not enough to make the external action good: and if the will be evil either by reason of its intention of the end, or by reason of the act willed, it follows that the external action is evil." 9 Note that in St. Thomas's teaching regarding the abstractio fonnae totius the common nature is abstracted not with individuated matter but with the common matter of the definition, and it is this whole nature that is formal with respect to (and predicated of) the individual. Yet this does not mean that the common nature is reducible to the form lacking the common matter of the definition-nor imply that the common nature is not formal with respect to the individual. 50 STEVEN A. LONG matter of the act without which there is no act. The moral object of an act is the act itself-inclusive of its essential matter or integral nature-under the ratio of its order to the end sought: it is not solely and simply that ratio apart from the essential matter or integral nature of the act. My second criticism is that these authors' use of "intention" as a univocal concept indifferently regarding end and means blurs in their account the fundamentally analogous character of intention in the work of Aquinas. This is to say that while the species derived from the end contains the species derived from the object (i.e., when the object is naturally ordered to the end), nonetheless intention most formally and chiefly regards the end, and choice the means. In other words, what is simply intended is distinct from what is not simply intended. In the normative case wherein the moral object is naturally ordered to the end, the most formal, defining, containing species of the act is derived from the end (which is simply intended) and the species derived from the object is merely a determination of this species and is contained within it. What is praeter intentionem then is not necessarily "accidental" vis-a-vis the species of the intention, because most formally and in the normative case the species of the object is an essential determination of the species of the end. Rather what is praeter intentionem may be accidental vis-a-vis the simple intention itself-as it is accidental to a trip as such that it be an automotive trip, and the automotive "character" of the action is contained within and defined by the ratio of "trip to grandfather's house" rather than, say, contained within and defined by the ratio of "demolition derby." The selfsame element can simultaneously be essentially contained within the defining moral species of an act and praeter intentionem in the sense of being per accidens with respect to the simple intention of the end. This is just to say that there are two senses of praeter intentionem. Hence it is completely consistent to hold (1) that the object is not praeter intentionem, because its species is contained by the species derived from the end, while (2) holding the doctrinewhich St. Thomas Aquinas explicitly holds-that most formally THE NATURE OF THE OBJECT OF THE MORAL ACT 51 and properly intention of the end is distinct from choice of the means and that the moral object is not the end. This makes clearer a case like that of deliberately lethal self-defense, in which a lethal act is contained within a defensive species because under the circumstances it is naturally proportioned to the end of defense, and wherein (1) the killing is not the object of simple intention while (2) it is chosen and willed as means and contained within the object of the moral act. As St. Thomas states, "Just as intention regards the end, so does choice regard the means. " 10 Only by extension of the proper sense of "intention" are the means spoken of as intended. One intends the end simpliciter as a condition of intending the endthrough-the-means, such that the end is always what primarily is intended and the object is intended derivatively or in a secondary sense. Ill. SELF-DEFENSE BY PRIVATE CITIZENS These two problems (removing the matter of the act from the moral object, and losing sight of the analogical nature of intention) are especially prominent in Finnis's treatment of the issue of killing in self-defense. 11 In his book Aquinas, 12 Finnis considers the deliberate choice of lethal means where no other means are available for self-defense to be merely a side-effect of the morally good intention of self-defense. He also argues that life is the subject of an exceptionless immunity from "every form of action done, by any private person whatsoever, with intent to destroy or even to damage that life. " 13 In other words, Finnis considers private killing (or even private harming) to be intrinsically evil, something that cannot morally be intended either as means or as end. Finnis writes about this view that: 10 STh I-II, q. 13, a. 4. 11 I say "Finnis," yet to the best of my knowledge the position of the three authors is in concord on this point. 12 John Finnis, Aquinas: Moral, Political, and Legal Theory {Oxford: Oxford University Press, 1998). 13 Ibid., 278. 52 STEVEN A. LONG It does no more than state the conditions on which one can rationally affirm that there are some kinds of acts (identifiable without using moral qualifications such as 'unjust', 'careless', 'excessively damaging') which must be excluded from one's further deliberations and choices, whatever the circumstances (in omnnem eventum). 14 But if killing or even harming must be excluded from one's deliberations whatever the circumstances, then one cannot deliberately choose to use lethal means in self-defense. Finnis nonetheless wishes to defend the acceptability of deliberate use of deadly force in self-defense where no other proportionate means may be found to safeguard the innocent. As he puts it: Have I then no right to resist the vicious or insane killer's attack? On the contrary, I can rightly resist the attack, preserving myself (or one or more others) by using whatever means are reasonably necessary for, and part and parcel of, repelling it. I do not lose this right just because I can foresee that these means will probably or even certainly have as their side-effect the assailant's death. For in doing what I do, I need not-and must not-be intending to kill (or indeed harm). I can-and should-be intending and choosing no more than to do what it takes to stop the attack (repellendi iniuriam). That is the object {obiectum; finis} or purpose of my acting; and the effect on my assailant's life is a sideeffect, outside the intention {praeter intentionem} or set of intentions from which the action gets its per se character as a morally assessable act. 15 Yet if it is exceptionlessly prohibited either deliberately to kill or to harm, whether as end or as means, then the deliberate choice of such means when only these means are proportioned to the end of stopping an unjust assault must be evil. Finnis wishes to hold the premise but not the conclusion. So he suggests that in these cases the killing is a mere side-effect of a good end. In fact, he goes so far as to say even of the attempt to assassinate Hitler, and of killing in time of warfare, that these manifest merely a desire to incapacitate. He treats even the aggressive killing characteristic of warfare and assassination as mere side-effects of self-defense. The difference here with St. Thomas is not in Finnis's desire to affirm that deliberate use of lethal force in self-defense may be 14 Ibid. 15 Ibid., 276. THE NATIJRE OF THE OBJECT OF THE MORAL ACT 53 permissible. The problem is threefold: first, in regard to Finnis's affirmation-quite contrary to St. Thomas's teaching-that life is exceptionlessly immune from every form of action done by a private party with intent to destroy or damage it; second, in the complete evisceration of the matter of the act of lethal defense; and third, in his reduction of the character of the moral object to "the purpose of my acting," which misconstrues the nature of intention. By contrast, according to St. Thomas, for an act to be good, it must be so both in regard to the end, and with respect to its due matter and circumstances. 16 IV. THE VIEW OF CAJETAN 17 On the older view of Cajetan-evident in his commentary on the passage about self-defense in STh II-II, q. 64, a. 7-it is also 16 STh I-II, q. 20, a. 2: "We may consider a twofold goodness or malice in the external action: one in respect of due matter and circumstances; the other in respect of the order to the end. And that which is in respect of the order to the end, depends entirely on the will: while that which is in respect of due matter or circumstances, depends on the reason: and on this goodness depends the goodness of the will, in so far as the will tends towards it." 17 In a passage that manifests the view both of intention, and regarding the matter of the act in defense, from Cajetan's Commentary on STh 11-11, q. 64, a. 7: "For the end and the means to the end fall under intention, as is clear with a doctor who intends health through a draught or diet. But that which as consequence follows from the necessity of the end does not fall under intention, but arises existing outside the intention, as is clear from the weakening of the body that follows from healing medicine. Likewise in two different ways it may be licit to kill, that of the public person and the private: for the public person, as for instance a soldier, orders the death of the enemy as a means to the end subordinated to the common good as is said in the text, but the private person does not intend to kill that he may be saved, but intends to save himself not depriving himself in defense-even though the death of the other should necessarily follow from this defense. And so in this way the latter [the private person] kills per accidens, while the former [the public officer] kills per se" ("Nam et finis, et medium ad finem cadunt sub intentione, ut patet in medico, qui intendit sanitatem per potionem, vel diaetam. Id autem, quod consequitur ex necessitate finis, non cadit sub intentione, sed praeter intentionem existens emergit, ut patet de debilitatione aegroti, quae sequitur ex medicina sanante. Et iuxta duos hos modos diversimode occidere potest licite persona publica, et privata: nam persona publica, ut miles, ordinat occisionem hostis, ut medium ad finem subordinatum bono communi, ut in litera dicitur, persona autem privata non intendit occidere, ut seipsum salvet, sed intendit salvare seipsum, non destitutus a sui defensione, etiam si alterius mortem ex sua defensione oporteat sequi. Et sic iste non occidit, nisi per accidens, ille autem per se occidit. Et propterea ad illud requiritur publica auctoritas, ad hoc non.") 54 STEVEN A. LONG true killing in defense is a "side-effect" or consequence of a good act. A defensive act which otherwise not occur is viewed as efficiently "triggered" by the onslaught of an unjust assault. On Cajetan's account the defender does not seek to kiB as an end, unlike the executioner (the killing is an essential part of the penalty whose just imposition is an end of the executioner's preparation action), nor even as a means. Although the citizen does use a lethal means, this use is actually conceived as a consequence of the defense called for by the unjust assault. Thus, in those cases where only a lethal means suffices to stop the assault, the lethality is considered not direct but indirect, an unintended by-product of one's defense. a. 7: Cajetan argues as follows in interpreting STh IHI, q. For the end and the means to the end faH under intention, as is dear with a doctor who intends health through a draught or diet. But that which as consequence follows from the necessity of the end does not fall under intention, but arises existing outside the intention, as is dear from the weakening of the body that follows from healing medicine. Likewise in two different ways it may that of the public person and the private: for the public person, be licit to as for instance a soldier, orders the death of the enemy as a means to the end subordinated to the common good as is said in the text, but the private person does not intend to kill that he may be saved, but intends to save himself not depriving himself in defense--even though the death of the other should necessarily follow from this defense. And so in this way the latter (the private person) kills per accidens, while the former (the public officer) kills per se. Surely in a sense it is true that lethality is not essential to the simple intention of the end of defense, for defense as such does not always require use of a lethal means. But since the case where moral object is by nature ordered to end the species derived from the object is contained within the species derived from the end, it is by no means dear that lethality as such cannot specify an act that is defensive in its intent. That something be accidental vis-a-vis the simple intention of the end does not signify that it is accidental with respect to the object, just as traveling by car is accidental vis-a-vis the simple intention to travel, but is not accidental to a car trip. Yet Cajetan seems to consider homicide in defense never as a means required by just defense, but only as a THE NATURE OF THE OBJECT OF THE MORAL ACT 55 consequence of such defense-hence his adducing of the line "that which as consequence follows from the necessity of the end does not fall under intention." If by "consequence" we mean to include the idea of means, then-since in such a case as defense the species of the object is contained within the species of the end-the lethal act may be said to follow from the end of defense or to be a consequence of it. But he puts consequence outside intention, and also comments that "the end and the means to the end fall under intention" -which properly understood is quite true. So it would seem that on his account we do not have the option of viewing a private citizen's deliberate choice of a lethal means of defense as a "consequence" or of just killing in defense as ever including lethality within the moral object. The problem here is also that Cajetan's explicit comparison is between the soldier or public person who kills as a means to the end subordinated to the common good, and the private person "who does not intend to kill that he may be saved." "Intent" in this passage-given the phrase "that he -may be saved" ("non intendit occidere, ut seipsum salvet")-seems to refer to intention of the means, rather than to the more formal sense of intention as chiefly and properly regarding the end. Yet, to the contrary: in some cases it seems that precisely what happens is that a defender kills for the sake of achieving a defense. That is to say, in some cases only a lethal act is such, qua lethal, as to achieve the effect of defense, and so for this reason it is deliberately chosen as such rather than merely following in the way that consequences follow. In such a case the lethal act appears to be both defensive and a means. The whole well-known schema of double effect that comes largely as a gloss upon Cajetan's construction of Thomas's teaching about self-defense by private parties is well known. An act must be good in object, end, and circumstance, but it may have two effects, one good and one evil. The evil effect cannot be the cause of the good effect, nor can the good effect be trivial and the evil effect be great, if the act is to be moral. This schema has been 56 STEVEN A. LONG applied to everything from medical ethics to modern warfare to the issue of self-defense. On this account, the deliberate use of a lethal means is not only considered to be a side-effect, but as a corollary it is held not to be part of the object of the act performed. 18 According to this traditional Cajetanian schema, if the killing in self-defense were included in the object of the act, it would be direct and therefore would in the proper sense of the term be intended. For the Cajetanian schema this would violate the principle that a private citizen may never intend to kill. Thus both in the traditional schema and in the new natural law theory propounded by Finnis, Grisez, and Boyle, intention seems to be treated as indifferently embracing end and means. On both these points of similarity with the new natural law theory (that just killing in self-defense is never to be included within the moral object of the defensive act, and that intention indifferently embraces end and means), I believe the traditional schema to be either misleading or incorrect, and hence I judge the new natural law theory to be even more seriously in error, both as a speculative account and as an account of the doctrine of St. Thomas. Now we will consider St. Thomas's actual account of legitimate killing by private parties in justifiable defense, and in this consideration show the basis for rejecting these two points. V. ST. THOMAS'S TEACHING ABOUT KILLING BY PRIVATE PARTIES IN LEGITIMATE SELF-DEFENSE A) Intention, Praeter Intentionem, and Species Contrary both to the traditional schema and the new natural law theory, I believe that it is clear from St. Thomas's teaching in STh II-II, q. 64, a. 7 that he means that it is wrong for a private citizen ever to intend to kill as an end (e.g., in the way an 18 As noted above, this seems to be the force of the contrast between the public person's act of killing as a means, and the description of the private act of killing in defense as not intending to kill that one may be saved, which seems to say: not as a means. THE NATURE OF THE OBJECT OF THE MORAL ACT 57 executioner kills). 19 Thomas does say that "as it is unlawful to take a man's life, except for the public authority acting for the common good, as stated above, it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority. " 20 This passage is often read as indicating the wrongness of choosing to kill the aggressor as a means of self-defense. Such a reading must regard "intention" as pertaining properly to the object as such rather than to the end-a conclusion I consider misleading. One serious argument supporting this common conclusion is that in this article Thomas is using "intentio" not in its narrower technical meaning, according to which "intentio" (intention of the end) is opposed to "electio" (choice of the means), but in the sense of "purpose" or "proposal," in a way that includes the means. Accordingly, "praeter intentionem" or "apart from intention" might be taken to mean "unintentional" in the sense of being outside both the end and the moral object. Understood in this manner, Thomas's words at the beginning of STh 11-11, q. 64, a. 7 would indicate that he does not use the term in the meaning he insists upon so clearly and formally elsewhere. The critical lines to be interpreted are as follows: Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species 19 It should be noted that the end of the executioner is to exact a penalty of death. That this is ordered to the common good, and that as a penalty it is an exaction of justice, may be ceded. But the type of penalty the executioner seeks to inflict is a particular type: death. That is, killing here enters into the definition of the end, by reason of the very nature of the penalty. A friend jests that the only way in which double-effect would make sense of this penalty would be if it were inflicted in a manner similar to Russian Roulette, and the executioner were constrained by law to keep firing a pistol only one of whose chambers would eventually be secretly loaded. Hence the executioner could plausibly hope each time that he would fire a blank. This is, of course, not the way in which executions are ordered-but even if they were so ordered with respect to the executioner, by nature this could not be true of the choice of the judge or jury who pass sentence of death and command execution of the penalty. These must seek the imposition of a penalty whose definition entails homicide. 20 SI'h TI-II, q. 64, a. 7: "Sed quia occidere hominem non licet nisi publica auctoritate propter bonurn commune, ut ex supradictis patet; illicitum est quod homo intendat occidere hominem ut seipsurn defendat, nisi ei qui habet publicam auctoritatem." 58 STEVEN A. LONG according to what is intended, and not according to what is beside the intention, since this is accidental. 21 Thus the following argument: could be brought against my emphasis on intention as belonging chiefly to the end: if Thomas referred the words that "moral acts take their species according to what is intended, and not according to what is beside the intention" to "intentio" in the proper sense of willing of the end, could be taken to suggest that moral acts never receive their moral species from what is chosen as a means, but only from the end to which the intention refers. And a view that removes the species of the object from the moral equation is more suggestive of the view of Abelard-which ignores the mornl species of the object-than of a proper explanation of the text at hand. Yet, to the contrary, the above-quoted lines of St. Thomas about the species of actions deriving from what is intended should be understood rdation to two essential points: his teaching that when the object is naturaHy ordered to the end the moral his species derived from the end is the defining species; and dear teaching that in the case of just lethal defense by a private party the lethal act of defense is naturally ordered to the end of just defense such that there is only one defining and formally containing species, and that is the species of defense derived from the en& With respect to the first point, there are only two possible cases: either the object is by its nature ordered to the end, or it is not" In the first case there is but one defining species and that is derived from the end, of which the species of the object is an essential determination. Thomas compares the species derived from the end in this case to a genus and the species derived from the object to a specific difference-but the specific difference is contained within the genus" In the second case, in which the object by ·its nature is not ordered to the end, the object has a 21 STh IHI, q. 64, a. 7: «nihil prohibet unius actus esse duos effocrus, quorurn alter solwn sit in intentione, alius vero sit praeter intentionem. Morales autem actus recipiunt speciem secundum id quod intenditur, non autem ab eo quod est praeter intentionem, cum sit per accidens." THE NATURE OF THE OBJECT OF THE MORAL ACT 59 separate means-end structure that is accidental vis-a-visthe further end, just as theft is accidental to adultery. In such a case, one is looking at two acts and two species.22 This separate means-end structure is itself either one in which the means is not naturally ordered to the end-and hence the means presents yet another separate means-end structure--or else one in which the means is naturally ordered to the end. But if it is the latter, then the species derived from the end is most formal and defining, and once again, the species derived from the object is an essential determination of it. In the case wherein the object is naturally proportioned to the end, the species of the object is contained within the more formal species derived from the end. This is not Abelardian. The problem with Abelard's position consists in its failure to acknowledge that certain types of actions are by nature ordered to the end deficiently irrespective of their further ordering. That is, the Abelardian position denies the natural moral teleology of each act, looking only to the larger end (or at times even consequence) of an act, rather than considering each act in its natural moral teleology. In St. Thomas's view, by contrast, a relation and proportion to the end is included in the object of the external act (STh I-II, q. 18, a. 4, ad 2), and by nature the end is most formal. In Thomas's analysis of moral action, the typical case is one in which the object is naturally ordered to the end. There are indeed composite act-structures composed of distinct acts for some general purpose, as with the example of theft ordered to adultery. In this latter case, the nature and end of theft is understood, and added to this is the further ordering of this act to another act with a distinct species (adultery) so that there are two species-each derived from the end of the respective act-one of which per accidensis "for the sake of" the other. And in this case the species from the end of theft is less formal than that from the end of adultery, because per accidens the first is for the second. But the per se is prior to the per accidens,and even this composite analysis 22 Although since the one act is intended because of the other, we can say with Thomas that the malefactor is more adulterer than thief (SI'h q. 18, a. 6). 60 STEVEN A. LONG requires prior understanding of the per se structure of the moral act, which is that of an object naturally ordered to an end, Thus the dictum that moral acts receive their species from that which is intended ("Morales autem actus recipiunt speciem secundum id quod intenditur") is fully compatible the use of St Thomas's standard sense of "intention" as most formally regarding end. Since the moral object is always defined as contained within the species of its proper end, it is never praeter intentionem in the sense of being outside the species its proper end the end to which it is naturally ordered). But in a different and more pertinent sense, dearly the object is praeter intentionem in the sense that the object is not the end, and it is the object that is ordered to the end, and the species of the object is an essential determination of the species derived from the end and not the other way around. Because the moral species of objects are essential determinations of the defining species derived from their proper or natural. ends, it is most formally quite true to say that moral acts receive their species from that which is intended, but not from that which is outside or apart from intention, which is per accidens. When Thomas says that what is beside or apart from intention is "per accidens" this "per acddens" pertains to the simple intention as such, in the way that we might say that it is accidental to the intention of a trip whether one drives, flies, or takes a bus. And this is why Thomas makes the further point (in STh II-II, q. 64, a. 7), that even if an act proceeds from a good intention it may be unlawful if it is disproportionate to the end. the sense in which he is This is possible precisely because speaking the object is "accidental." to the end, that one must or further determine whether it be naturally ordered to the not in order to judge properly of its moral species. Vis-a-vis lethal defense, this is a way of pointing out that it is not enough for one to that someone chooses a lethal defense to judge its moral species: rather, one must know and judge the relation of this the innocent. moral object to the protection THE NATURE OF THE OBJECT OF THE MORAL ACT 61 The teaching of St. Thomas that the determination of the end is formal with respect to that of the object (STh 1-11, q. 18, a. 7, ad 3) is critical, and it directly pertains to what St. Thomas asserts about the case of justified defense. Hence, to the question why it should be licit to kill, but not to commit fornication or adultery, as a means of defense, he replies that "It should be said that the act of fornication or adultery is not necessarily ordered to the conservation of life, as is the act from which at times homicide follows. "23 In other words, lethal defense has a natural relation to the stopping of unjust endangering assault. Homicide "sometimes" follows because it is accidental to defense as such that it require homicide: but it is not accidental to this defense that it be such as actually to require it. Granted that there are cases wherein killing is only a consequence of a defense, there are other cases where lethal means need be deliberately employed to defend the innocent, and where they are employed within the generic ratio of defense, solely because this is the only proportionate means which can effectuate defense. Hence there is-as St. Thomas says-one species for such an act from which homicide at times follows, namely, the species of a defensive act. While the means chosen is deliberately lethal, what is intended in the slaying is defense, and the slaying is an essential determination of this act of defense. Thus there are two effects of the one act: one that is properly intended as the end of the defense (preservation of the life of an innocent), and one that is the deliberately chosen means of defense (a lethal act stopping-by killing-the assailant). When the sole or most reasonable proportionate means naturally ordered to defense is a lethal means, deliberate choice of the lethal act is defensive (in species) while having an effect distinct 23 STh 11-11, q. 64, a. 7, ad 4: "Dicendum quod actus fomicationis vel adulterii non ordinatur ad conservationem propriae vitae ex necessitate, sicut actus ex quo quandoque sequitur homicidium." For obvious reasons I believe that "sequitur" should be translated as "follows" rather than "results," as the former includes both cases wherein lethality is not deliberately chosen but occurs accidentally as well as those in which a lethal means is chosen as the only proportionate means of just defense. 62 STEVEN A. LONG from (or praeter) the protection of the innocent, namely, the death of the malefactor. B) just Defense and the Analogical Structure of Intention If it be granted that the above considerations remove the objection that Thomas cannot in STh 11-11, q. 64, a. 7 mean by "intention" that which he normally means, then the only way to avoid the logic of this passage is-as with the standard Cajetanian account of defense, and also that of Finnis, Grisez, and Boyle-to treat intention as properly and most formally pertaining to the means. But far from intention being chiefly of the means, it is chiefly of the end, and where the object is by its nature ordered to the end, the most formal and defining species is derived from the end, of which the object is an essential determination. If the end, accordingly, is defensive-to protect the innocent-the presence of homicide is not "intentional" because the homicide is wholly for the sake of defense, and not for any other reason. One naturally seeks for comparisons. The case of homicide within justified defense should not, for example, be compared with the case of chemotherapy, in which the treatment, which is ordered to the killing of cancer cells, also (because it is relatively undifferentiated) frequently results in the killing of good cells. The former is not achieved by means of the latter; the latter merely accompanies the former. By contrast, in certain cases of defense in which only a lethal means may suffice to stop the assailant, the killing of the assailant is precisely that which causes the cessation of the assault; it is properly speaking a means deliberately chosen because either it is the only, or at least the most reasonable, means of stopping the assault. A proper medical analogy might be the following: taking an emetic medicine which will cause the vomiting up of a poison as the means to keep this poison from harming the patient. Here the bad effect of vomiting (from the vantage point of general health) is precisely what it is that causes the good effect of getting the poison out of one's system. The species of the object is contained THE NATURE OF THE OBJECT OF THE MORAL ACT 63 within the species of the end (who would think a prescription for vomiting to be a good thing simply for the sake of vomiting, as though vomiting were a good in itself?). Homicide is permitted in justified defense only insofar as it is either the only or the best means to justified defense. When this is true there is no doubt that it is naturally ordered to its end, and hence that what is intended is not killing but defense, although killing is chosen as a means to defense. 24 Thus it also appears that the accounts of Finnis, Grisez, and Boyle fail to note an important aspect of the comparison that St. Thomas is making. An officer of the law might in some circumstances (as has happened historically) follow instructions to "shoot to kill" even in defense against a merely diversionary or weak delaying tactic by a criminal band-not because of the gravity of the threat to the officers themselves, but because should the band succeed in escaping this would pose a threat to society at large. By contrast, a private citizen cannot ever rightly use the occasion of defense to seek the death of the assailant as an end, but must pursue merely the goal of defense, forfeiting deadly means if these are not necessary to the defensive purpose. If they are necessary, the private citizen ought to deploy them without malice, acting against the aggressor only for the sake of the protection of the innocent. Also lost in these readings is St. Thomas's argument from the Prima Secundae (STh I-II, q. 100, a. 8, ad 3) to the effect that: The slaying of a man is forbidden in the decalogue, in so far as it bears the character of something undue: for in this sense the precept contains the very essence of justice. Human law cannot make it lawful for a man to be slain unduly. But it is not undue for evil-doers or foes of the common weal to be slain: hence this is not contrary to the precept of the decalogue; and such a killing is no murder as forbidden by that precept, as Augustine observes (De Lib. Arb. i, 4). 24 Ergo in those cases in which a lethal act is chosen because only a lethal act as such is sufficient to the defensive purpose of stopping the assailant, the material difference of the defensive act is its lethality. Nonetheless, inasmuch as the object is naturally ordered to its end, the species of the object is contained within the species derived from the end: and so the moral object is defensive in nature. 64 STEVEN A. LONG Thomas here refers to "lawful slaying"-that is, not only to execution but to the kind of slaying in justified defense that courts have always accepted as lawful. To repeat: for St. Thomas that which primarily is spoken of as being "intended" is the end, whereas the object of one's external act (which is as means to the end) is primarily spoken of by St. Thomas qua means as "chosen." Hence the following words of St. Thomas: Accordingly, in so far as the movement of the will is to the means, as ordained to the end, it is called "choice"; but insofar as the movement of the will is to the end as acquired by the means, it is called "intention." A sign of this is that we can have intention of the end without having determined the means which are the object of choice. 25 One may use the terms "end" and "intention" analogously, but in the focal and most proper sense, as St. Thomas puts it (STh 1-11, q. 13, a. 4), "Just as intention regards the end, so does choice regard the means"; or (STh 1-11, q. 12, a. 1, ad 4): "Intention is an act of the will in regard to the end." The notion of intention only can extend to means at all because and insofar as they are ordered to an end. Because one deliberates regarding means, one does indeed in an analogous sense intend them: they are rationally chosen and hence ought be morally choiceworthy. But this is a secondary and derivative sense of intention by comparison with the primary sense, which regards the end of the external act which is the raison d'etre of the whole. The error to be avoided is that of treating intention as generally meant to refer globally both to means and to end. When the will moves to the means a.S ordered to the end, Thomas speaks of "choice." That is, most properly we choose the means as ordered toward the end. When consequently the will moves toward the end as acquired by the means, we intend the end through them. The choosing of the means exists in relation to what is chiefly, properly, and formally intended, what is intended simpliciter: the end. Hence intention has an essentially analogical structure, and the analogy is an analogy of attribution 25 STh I-II, q. 12, a. 4, ad 3; see also STh 1-11, q. 12, a. 1; STh 1-11, q. 12, a. 3. THE NATURE OF THE OBJECT OF THE MORAL ACT 65 or pros hen equivocation because intention is chiefly of the end. Apart from the intention of the end there are no means and there is no human action. Thus read, St. Thomas teaches that a private citizen may never intend as an end-like the executioner-to kill. Yet the private citizen may deliberately deploy a lethal means 26 when this is the only reasonable recourse in a just defense. 27 The proof that the killing is not embraced as an end is that if the assailant stops the assault or surrenders the defender does not then proceed to kill him. The cessation of the lethal act under these circumstances strongly contrasts with the act of the headsman, who if the first swing does not kill will take another stroke because the act of the executioner is ordered to exact a retributive penalty of death essentially ordered to justice. The executioner is not conditioning his act on something that the condemned is or is not doing at present, but rather on the judgment of justice indicating that this individual must suffer a penalty of death. The executioner, who seeks to apply this penalty, does indeed as an essential element thereof "intend" to slay, because he does indeed intend as an end the administration of a justly lethal penalty. This view of the contrast between private defense and public execution or other public slaying engages a different interpretation of "double effect." For on this reading of intention, in private defense one effect is the end sought and attained-that of protecting life-while the other effect is precisely willed as a means to that effect, and is apart from intention narrowly speaking (i.e., intention regards the end), while as pertains to species it is not apart from intention (i.e., it is a lethal act contained within the species of defense because it is naturally ordered to defense). 28 26 Sfh II-II, q. 64, a. 7. 27 Ibid.: "Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man" ("Nee est necessariurn ad salutem ut hunc acturn moderatae tutelae praetermittat ad evitandam occisionem alterius"). In other words, if the option is knowably either to defend effectively or to avoid killing, and the defense is just, one deliberately chooses to defend rather than avoid killing. 28 That this is St. Thomas's view of intention here is made quite clear in his response to the third objection, concerning the irregularity of killing in defense by clerics. Here he notes that "And for this reason a cleric, although he slays a man in self-defense, is irregular, even though 66 STEVEN A. LONG Consider the heart surgeon cutting open a victim on the operating tabieo He lays open a man's chest precisely as a means to the intended end of repairing the man's heart and hence promoting his life. Were to choose to cut open the chest as an end simpliciter-as though it were good itself-the act would not be justifiable. But as ordered to the end health it is justi29 fiable. The species derived from the object is contained within the species derived from the end, and modifies it. As regards species, the act is not praeter intentionem; the laying open of the chest is a medical act rather than merely an act of carnage. Thus what could never be simply intended as an end by a private citizen-rending open a person's chest as though it were good for its own sake-may intended as a means, because it lies within genus of medical acts: species is medical. 30 This analysis conforms to how persons who have needed deliberately to use him" lethal means in defense actually speak: "'I didn't want to he intends not to kill him but to defend himself" ("Et prnpter hoc clericus, etiam si se defendendo interficiat aliquem, irregularis est, quamvis non intendat interficere, sed seipsum defendere"). One notes three crucial things: (l)Thomas defines the intention of the cleric with reference to the end of defense and not with reference to the lethal means deliberately deployed; (2)Thornas includes the matter of the act in the moral object-since a cleric is obligated by law not to slay, and since slaying is in the matter of me act of deliberately lethal defense, Thomas considers the cleric who slays in defense to be "irregular"; (3)bec;mse clerics included in the moral object of the are under a special legal constraint not to kill, and act of deliberate lethal defense as the matter thereof, this-relative to the legal enactment-brings about a different species. Of course, what is involved is a deliberate act. Saint Thomas comments in the response to the third objection of the very next article that accidentally caused death contravenes the canons only in cases where this occurs because someone is acting illicitly or without due care. Now a cleric fleeing might accidentally cause death too even if using care, but this wouldn't make him irregular. What is involved is deliberately lethal defense. 29 The point here is not that the other version of double-effect is not useful, but that its usefulness pertains to distinguishing consequences from the object of the act, while for the case of deliberate choice of lethal means in defense (and for certain other cases) this version is unavailing. 30 One can imagine an interlocutor asking: how can ripping open someone's chest in bloody fashion be medicinal? The answer needs to show the natural proportion of this act to the medicinal end, that is, that this is an act required by and ordered to those medicinal acts in heart surgery which cure rather than harm. Similarly, the act of lethal defense is one whose natural proportion to the end of defense must be shown, that is, that it is an act required by and ordered to the protection of innocents. Even then, it also must be shown not to threaten undue harm to other innocents, nor to use force or inflict damage exceeding what is required for an effective and sure defense. THE NATURE OF THE OBJECT OF THE MORAL ACT 67 (i.e., there is no simple intention of killing as an end) "but he gave me no choice" (i.e., only lethal means were objectively proportioned successfully to effect the end of defense). An important distinction should be made here between a lethal act of defense and a lethal act imposed as a judicial penalty. It is never permissible deliberately and directly to kill an innocent person. But the notion of innocence here is broader than that of moral innocence. The reason why the tradition has always permitted killing in justified defense is precisely that even when the killed assailant is not morally responsible for his conduct, the assailant is still not performatively innocent, not innocent of performing aggressive and endangering acts which some are obligated to resist by proportionate means. Unlike judicial penalty, there is no question of assessing moral responsibility of the assailant prior to mounting a defense, nor of calibrating one's resistance on the basis of the assailant's guilt. The use of lethal force in just self-defense is predicated not on the moral responsibility of the assailant, but on his lack of performative innocence. The datum that this person is, for whatever reason, unjustly endangering others, combined with the calling of someone to protect those endangered, yields the need for defense. Judicial penalty essentially requires prior judgment of guilt, whereas defense does not (and for the most part cannot) require such judgment, but instead requires only the judgment of actual assault and of that lack of performative innocence which pertains to one who undertakes gravely harmful, destructive, or lifethreatening actions. We justly view the following to be two radically different cases: (1) the case of a man who only can achieve the defense of his child by applying a knowably lethal weapon against a madman who is not morally culpable for his actions, and (2) a hypothetical judge who would sentence an accused assailant to death prior to any determination of moral guilt. Having introduced this distinction between moral and performative innocence, one might wonder how it applies to the case of craniotomy. Might one defend the position of Finnis, 68 STEVEN A. LONG Grisez, and Boyle on craniotomy by claiming that the fetus is not performatively innocent, and thus that the moral norm that it is never permissibile deliberately and directly to kill an innocent person does not apply? On the contrary, one must maintain that the fetus is not even possibly guilty of merely performing any aggressive conduct that could wrongfully endanger the mother. C) Avoiding Ange/ism I have already spoken of the danger of angelism regarding the moral object. The abstraction from the matter of the act of defense in the Cajetanian scenario is arresting. We are encouraged to view an act of defense as something almost efficiently caused by the assailant whose acts call forth a defense. 31 In this case of just lethal defense, what is the object of the act, what is the act "about"? Saint Thomas teaches (STh 1-11, q. 18, a. 2, ad 2) that "The object is not the matter 'of which' (a thing is made), but the matter 'about which' (something is done); and stands in relation to the act as its form, as it were, through giving it its species." When a defender justly deploys lethal means, the act is about stopping an unjust assault by lethal means. Knowable or extremely probable lethality is included in the object, as a proper accident that materially differentiates the object of such a defensive act owing to the gravity of the means. Finnis, Grisez, and Boyle ask (rightly) why we ought exclude the matter of the act in the case of the deliberate use of lethal means in defense, but include the matter in the case of the craniotomy. The answer must finally be that the matter should be included in each case. VI. CONCLUSION Because the moral object is constituted in relation to reason, the new natural law theorists treat the relation of the moral object 31 The images prompted are consistent with the idea of a passive system whose triggering occurs while the owner may be asleep. But were the assailant efficiently.charged with one's defense, there would be none, because he seeks to victimize the defender. He bears final responsibility for his own harm, but he is not a suicide: an act of defense is called for. THE NATURE OF THE OBJECT OF THE MORAL ACT 69 to reason as though reason need not take stock of its real physical nature. This evacuation of due matter from the moral object is a mistake. The place where the same mistake appears prominently in the tradition regards the nature of moral intention in a lethal act of just defense by a private citizen. This is why Finnis, Grisez, and Boyle make such a point of referring .to the traditional account of killing in private defense. The traditional schema of double-effect articulates many truths about human action. In the form deployed by Cajetan it makes perfect sense regarding a consequence rather than a deliberate effect of action (and hence applies well to the case in which a lethal means is not deliberately employed because of its unique suitability to repulsing an aggressor, and accordingly wherein the killing is merely a consequence of the defense rather than its chosen means). The very effectiveness of such reasoning where it does apply-in distinguishing mere consequences from the object of the act-may be traced to its focus upon causal "directness," which indeed pertains to the matter of the act. But still it tends (as is seen in Cajetan's analysis of defense)-although less completely than the new natural law theory-to treat intention as a univocal concept indifferently applicable to both end and means. This view of intention forgets that we can speak meaningfully of intention even before any means has yet been either deliberated or chosen. It forgets that intention is principally, properly, and formally of the end, and that we speak of "intending" the means of the external act only by analogical extension, and that this very extension is only possible because the means are ordered to the prime target of intention which is the end. The very reason why the species derived from the object is contained within the species derived from the end is that the object is naturally ordered to the end. Yet this very datum indicates that intention must chiefly regard the end, and only secondarily and by extension pertains to the means. The argument that deliberate lethality in just defense is not naturally ordered to defense suggests a separate means-end act structure. While this is possible in a case of unjustified lethal 70 STEVEN A. LONG action, this does not regard justified lethal defense, and is contrary to Thomas's teaching on the question. Hence Thomas expressly distinguishes the case (STh q. a. 7) where the moral object is naturaHy a separate act to itself from that which the object by its very nature is ordered to the end. And Thomas expressly affirms that the act of defense from which homicide at times is naturaHy ordered to defense (STh q. 64, a. 7, ad 4). For the first case the action is contained under two disparate moral species, while in the second case-such as killing in self-defense-it is contained under only one. At times from the pursuit of the end of defense homicide wiH follow-sometimes only by way of consequence, but also sometimes because no other effective means of defense is otherwise available, such that a lethal act is naturally proportioned to the end of defense. The sole difference (if we are speaking of just defensive action) is that in one case killing is required to stop the other it is not follows only by way the assailant, while of consequence. Saint Thomas' s expression about defense as "the act from which sometimes homicide follows" (STh H-H, q. 64, a. 7, ad 4) is such as really to pertain, albeit quite differently, to each these cases. In conclusion, four points stand out: first, the per se connection of moral object end in the normative case in object is naturally proportioned to the end; second, the need to include the essential matter of the act-its integral nature or physical character-within the moral object under the ratio of its order to the end (or, other words, to renounce moral angelism about the object); third, the analogical structure of intention Thomas's teaching, in which intention is properly chiefly of the end, while choice is of the means, which means are only secondarily spoken of as "intended"; and, fourth, that the rationes of judicial punishment and of defense are fundamentally diverse, because judicial punishment follows a judgment of moral guilt, while defense follows a judgment of what is proportionate in resisting attack or the per se agent of destmctive action. THE NATURE OF THE OBJECT OF THE MORAL ACT 71 The traditional account of object and end suffers from certain anomalous topical weaknesses, which are made more systematic in the new natural law theorists. Recognizing this permits one to return to the flexible, powerful, and realistic account of St. Thomas, that has much yet to teach us in the midst of contemporary questions. 32 32 I have been happy to discover that, in essentials, this is also the interpretation held by the great Dominican commentator Francisco de Vitoria-the founder of international law-in his commentary on the Secunda Secundae. Speaking of defense, he follows Thomas in underscoring the difference between choice and intention. As intention pertains to the end, he argues that where there is a defensive end, no simple desire to kill, and no other proportionate means of defense save a lethal means, one may in a just defense deliberately deploy the lethal means. The lethal act that is necessary to defense is licit to will but not to intend (defense must be the intention). Hence Vitoria writes: "Si enim qui se defendit non habeat alia arma sino un arcabuz, tune clarum est quod non potest se defendere nisi occidendo. Ergo etiam licet velle occidere. Et quando ultra arguitur: ergo licet intendere: nego consequentiam, quia differentia est inter electionem et intentionem, quia intentio est ejus quod per se intentum est ut finis. Sic ergo non licet propter se intendere mortem alterius, sed solum facere totum quod probabiliter potest ad defensionem suam. Sic etiam infirmus propter salutem vult abscindere brachium, sed non hoc intendit, cum non vellit de per se quod abscindatur brachium. Et breviter, ne in hoc maneat scrupulus, dicimus quod totum quod est necessarium ad defensionem, totum illud licet velle, sed non intendere" (Francisco de Vitoria, O.P., Commmentarios a la Secunda secundae de Santo Tomas, Torno ill: De ]ustitia [q. 5766], ed. Beltran de Heredia, O.P., Biblioteca de Te6logos &panoles, volume 4, dirigida por los Dominicos de las Provincias de Espana [Salamanca, 1934), 303). I am indebted for this discovery to the congenial erudition of Dr. John Boyle of the University of St. Thomas. The Thomist 67 (2003): 73-94 MORAL ACTION AS HUMAN ACTION: END AND OBJECT IN AQUINAS IN COMPARISON WITH ABELARD, LOMBARD, ALBERT, AND DUNS SCOTUS TOBIAS HOFFMANN The Catholic University of America Washington, D.C. HENTHESAME human action is considered from different perspectives, one can describe it and assess its value in quite different ways. The actions of giving food to a person in need or taking the wallet of a stranger can be described in their ontological dimension as having a certain being, to be characterized as motion, belonging to the categories of quality, quantity, and location. The actions can also be described in their natural and biological dimension as moving one's hands and fingers in a certain way, caused by the contraction of the muscles which in turn proceeds from stimuli in the nervous system. Finally, they can be considered in their moral dimension: What is the person doing? Why is he or she doing it? Is the action good or bad? Is the agent responsible for this act? Moral philosophers are interested in considering actions from this last perspective. Thus, they ask two main questions. First, what constitutes the specifically moral character of actions? Second, how can one assess the moral value of an action? In medieval thought, deeds have a moral quality insofar as they are performed deliberately and freely. In other words, morally relevant acts arise from reason and wHL 1 But actions are not judged on the basis of the agent's disposition alone, that is, his 1 See for example Albert, H Sent., d. 39, a. 1, sol.; De bono, tract. I, q. 2, a. 7, Editio Coloniensis 28 (Munster: Aschendorff, 1951); Aquinas, STh I-II, q. 1, a. 1. 73 74 TOBIAS HOFFMANN reason and will, but also on the basis of the action itself and of what it accomplishes. In other words, the agent, the action, and the effects are taken into account. The difficulty, however, consists in conceiving these subjective and objective factors as a unity and to assess their specifically moral character. In this paper I will study different medieval explanations of moral goodness in relation to the principles from which the moral quality arises. Special attention will be given to the importance that each author attributes to the end of the agent (i.e., to the reason why he acts). The end is either superior or subordinate to the object of the action (i.e., what the person is doing), and the various authors studied here hold different views about which one of the two is more significant for moral action. When a moral theory focuses mainly on the object of the act, the moral value of actions is assessed primarily from the perspective of the action itself. By contrast, when the end of the action occupies the central role, moral goodness is considered principally from the viewpoint of the agent. A single moral theory may consider both perspectives, but which perspective predominates has crucial consequences. The purpose of this paper is to show how Aquinas develops an ethic that puts the agent at the center of morality, by considering the end as the chief factor in moral actions. Consequently, at its very foundation, Aquinas's moral theory understands moral action as human action. By contrast, if ethics focuses primarily on the object and considers the end an accidental feature of the act, it threatens to limit itself to the question of what is allowed and what is not. Yet each person desires to know primarily why to do things rather than what to do. When I know why to do something, I then become interested in what is the most fitting action to accomplish the end. In addition to looking at Aquinas, I will consider Abelard, Lombard, Albert, and Duns Scotus-partly in order to put Aquinas's account into its historical context and partly in order to contrast the differences between them and Aquinas. END AND OBJECT IN AQUINAS 75 I will discuss the authors in historical sequence and study the position of each by, first, asking how each one accounts for the moral dimension of actions as opposed to their natural dimensions, and, second, analyzing their explanation of the constituent factors of moral goodness. I. ABELARD It is well known that Peter Abelard emphasizes the intention as the only criterion for the goodness or badness of actions. This view presupposes an understanding of the action (opus) as morally neutral or indifferent in itself, when it is not informed by a good or bad intention. 2 Thus, a deed can be good (bonum), without being done well (bene, i.e., bona intentione). Moreover, only when its intention is good is an action morally good. For instance, two different persons may execute someone who is convicted of a crime. One of them, however, does so merely because he hates the criminal, while the other one intends to establish justice. Both do what is just, but one does so from a bad intention, the other from a good intention. 3 From the time that the Synod of Sens (1140) condemned a number of propositions taken from Abelard's theological and ethical doctrine, his ethics has been accused of subjectivism. Recent scholarship has argued that this is due to a misunderstanding of his doctrine and that Abelard does in fact emphasize objective conditions for morally good actions. 4 Indeed, Abelard 2 Peter Abelard, Collationes II, nn. 205, 211, 216, ed. J. Marenbon and G. Orlandi (Oxford: Clarendon Press, 2001); Ethica I, 3; I, 7; I, 11 ed. D. E. Luscombe, (Oxford: Clarendon Press, 1971); Commentaria in Epistolam Pauliad Romanos I, cap. 3, v. 12, ed. E. M. Buytaert, Corpus Christianorum, Continuatio Mediaeualis 11 (Tumholt: Brepols, 1969). 3 Abelard, Collationes II, nn. 212-13. 4 R. J. Van den Berge, "La qualification morale de l'acte humain: Ebauche d'une reinterpretation de la pensee Abelardienne," Studia Moralia 13 (1975): 143-73; S. Ernst, EthischeVernunfrund christlicherGlaube: Der Proze{SihrerwechselseitigenFreisetzungin der z:eit von Anselm von Canterbury bis Wilhelm von Auxerre, Beitrage zur Geschichte der Philosophie und Theologie des Mittelalters, Neue Folge 46 (Miinster: Aschendorff, 1996), 122-46; idem, "BloBe Gesinnungsethik? Eine Neuinterpretation der 'Intention' bei Peter Abaelard," Theologische Quartalschrifr 177 (1997): 32-49; M. Perkarns, Liebe als Z£ntralbegriffder Ethik nach Peter Abaelard, Beitrage zur Geschichte der Philosophie und Theologie des Mittelalters, Neue Folge 58 (Miinster: Aschendorff, 2001), 73-85; 300-324. 76 TOBIAS HOFFMANN mentions that for the intention to be good, a good motivation is not sufficient; the action must also be truly pleasing to God and not impede God's plan. To be truly pleasing to God requires a full assessment of the situation at hand. One must foresee how one's action may or may not be in line with God's designs. Furthermore, the intention must spring from a love of God for His own sake, and not merely because of the goods that He provides for us. In short, the intention is good only when both the objective value of the act (its being in accord with God's plans) and the subjective condition of the agent (the motivation to do the good for the sake of the good and from love of God) are good. 5 Thus, for Abelard intention is a wider notion than motivation, and there are objective, not merely subjective, conditions that must be met for an intention to be good. Yet the intention as such is the mental act and not the external act. Accordingly, Abelard defines sin in terms of a mental act: sin does not consist in what the transgressor does, but in his consent to do what is prohibited. 6 When one has consented to commit a sin, or conversely, when one intends to do something good, the external act that realizes one's intent does not add to one's merit or demerit. 7 The true difficulty of Abelard's account is not his alleged subjectivism, but rather the fact that he defines the objective value of actions on the basis of the intention alone. This has two problematic consequences: first, Abelard says little about what actions are in fact to be done or to be avoided; second, he overcharges the notion of intention by demanding that it not only consist of a good motivation, but that it also contain the right assessment of what is to be done, in accord with God's will.8 Abelard clearly focuses on the agent, and secondarily on the action; when he discusses the moral character of actions. The moral value of actions arises from the will. Yet his account of how 5 Abelard, Comm. Rom. N, cap. 13, v. 9-10. Cf. Abelard, Collationes II, n. 215; Comm. Rom. lll, cap. 7, v. 13; Collationes II n. 225-26; Ethical, 12. 6 Abelard, Ethical, 12. Cf. J. Marenbon, The Philosophy of Peter Abelard (Cambridge: Cambridge University Press, 1997), 251-64. 7 Abelard, Ethica I, 7. 8 Perkams, Liebe als 'Zentralbegriff der Ethik nach Peter Abaelard,326. END AND OBJECT IN AQUINAS 77 it extends from the will to the entire spectrum of morally relevant acts (i.e., other mental acts and external acts) is problematic. II. PETER LOMBARD With regard to the centrality of the intention, Peter Lombard's doctrine resembles Abelard's, except that he holds that certain acts are bad in themselves. His main importance lies in the fact that in his Sentences, Lombard sets the stage for further discussions about the moral character of actions. Later theologians heavily depend on Lombard's Sentences with respect to the vocabulary they employ, the questions they commonly address, and the authoritative statements of Scripture and the Fathers of the Church they take into account. 9 The question of the specifically moral character of actions is implicit in several passages from the Sentences, particularly in distinctions 35-44 of book IL Lombard distinguishes between the ontological character and the moral value of actions. Even a bad will and bad actions are good, insofar as they are (i.e., insofar as they are actions). A will qua will and an action qua action are from God; yet insofar as the act is disordered, against the law, or not related to a suitable end (finis debitus), it is a sin. 10 How can the will, which is naturally good, become bad? And why does sin consist in a disorder of the will rather than of the intellect or of other potencies of the soul? 11 Lombard's answer is neither elaborate nor very clear. To will bad things is always bad, whereas to understand or think about bad things is not necessarily bad, though occasionally it is. The act of the will somehow transcends the natural order: as a potency, the will is a natural thing, and thus it is good insofar as it is. The act of the will, 9 For Lombard's ethical doctrine see J. Rief, "Die moraltheologische Konzeption in den Sentenzen des Petrus Lombardus," Theologische Quartalschrift 144 (1964): 290-315; M. L. Colish, Peter Lombard, Brill's Studies in Intellectual History 41, vol. 2 (Leiden, New York, Cologne: Brill, 1994), 471-516; Ernst, Ethische Vemunft und christlicher Glaube, 201-26. 10 Peter Lombard, II Sent., d. 35, cap. 2, nn. 4-11 (Grottaferrata: Editiones Collegii S. Bonaventurae Ad Claras Aquas, 1971); II Sent., d. 36, cap. 6, n. 5; II Sent., d. 37, cap. 1, n. 3. 11 Lombard, II Sent., d. 39, cap. 1, nn. 1-3; cap. 2, n. 1. 78 TOBIAS HOFFMANN however, is not part of the natural order (non esse de naturalibus). 12 Following St. Augustine, the Magister stresses that the will controls its own acts. Only when an act is voluntary can it be considered a sin. Therefore, sin cannot be without the will. 13 Lombard explicitly distinguishes between two aspects of action: an interior act (the mental act) and an exterior act (the performed work, operatio). Though he does not limit the interior act to the act of the will, as later authors will do, this distinction helps him to discuss the good intention of the will separately from the goodness of the act that is actually performed. 14 He admits that a good intention is an essential condition for the whole action to be good, but he does not limit the sphere of moral relevance to the intention. 15 In the Sentences, Lombard first considers the criteria according to which the will is considered good. What makes the will good or bad is the end that it pursues. The end is good if it is informed by charity-that is, if the will desires happiness, eternal life, and God himself. 16 Lombard then inquires as to whether the external act is assessed in the same way as the act of the will. If the will becomes good by desiring a good end, does the external act itself also become good when it is ordered to a good end? Actions are good when they are done from a good intention (i.e., when they spring from a good will) and when they are ordered to a good end. 17 But is this also a sufficient condition? On this question, Lombard alludes to Abelard and his school: 12 Lombard, II Sent., d. 39, cap. 2, nn. 1-2. The word "natural" seems to indicate that fact, Lombard which belongs to the natural constitution of man as created by distinguishes a movement by which one wills the good naturally (which is the condition before the Fall) from a movement of the mind by which one can delight in sin, cf. II Sent., d. 39, cap. 3, nn. 3-4. 13 Lombard, II Sent., d. 41, cap. 3-6. 14 For the distinction between interior and exterior acts see Lombard, II Sent., d. 35, cap. 1, n. 1; cap. 2, n. 3. 15 For the exact meaning of the word "intention" in Lombard see II Sent., d. 38, cap. 4, n. 2; Ernst, Ethische Vemunft und christlicher Glaube, 211-12. 16 Lombard. II Sent., d. 38, cap. 1, nn. 1-2. Cf. Augustine, De Trinitate XI, 6, 10 (CCL 50:345-46). 17 Lombard, II Sent., d. 40 cap. un., n. 2. END AND OBJECT IN AQUINAS 79 But it is asked if all deeds of man are good or bad because of the will and the end. According to some, this is the case. They say that all acts are indifferent, so that they are per se neither good nor bad, but each act becomes good from a good intention and bad from a bad intention. In their view, each act can be good, if it is done with a good intention. 18 Lombard's account of the Abelardian position, though one-sided, has the merit of sharpening the terms of the question for later discussion. While Lombard acknowledges the importance of a good will, a complete assessment of the goodness of actions also has to take into account the intrinsic value of the actions themselves. He adduces several citations from Augustineparticularly from Contra mendacium-to confirm this point. To feed the poor is always good, as long as it is not done with a bad intention. Theft, fornication, and blasphemy are sins, no matter whether they are done for a good or a bad end. It is not sufficient to ask why something is done-one must also ask what is done. 19 Lombard concludes that a good will depends on the end, and good actions in turn require a good will that desires a good end. Yet actions done by a good will and for the sake of a good end may still be bad, that is, when the deeds (opera) are per se bad. 20 The following passage formulates the chief terms in which Lombard's position influences later accounts: We quite carefully expounded the view of those who say that all acts are good in their natural dimension, and that they are good insofar as they are .... Some also add that certain acts are good not only in essence, but also in genus, such as feeding the hungry, which is an act belonging to the genus of Works of Mercy. They call certain acts absolutely or perfectly good, when not only the essence or 18 Ibid., nn. 4-5: "Sed quaeritur utrum omnia opera hominis ex affectu et fine sint bona vel mala. Quibusdam ita esse videtur, qui dieunt omnes aetus esse indifferentes: ut nee boni nee mali per se sint, sed ex intentione bona bonus, et ex mala malus sit omnis actus; seeundum quos quilibet actus potest esse bonus, si bona intentione geratur." 19 Ibid., nn. 7-8; Augustine, Contra mendacium (CSEL 41:489-491). 20 Lombard, II Sent., d. 40 cap. un., n. 12. Cf. 0. Lorrin, "Le probleme de la moralite intrinseque d'Abelard a saint Thomas d'Aquin," in 0. Lorrin, Psychologie et morale aux XII" et XIII" siecles, vol. II, 1 (Leuven: Abbaye du Mont Cesar; Gembloux: J. Duculot, 1948), 42165, at 422-24. 80 TOBIAS HOFFMANN genus is good, but when also the cause and the end are good, such as are those that arise from a good will and that are measured by a good end. 21 III. ALBERT THE GREAT For generations of theologians, Peter Lombard's analysis of human action became the standard account: actions are considered first with respect to their natural (i.e., ontological) goodness, to which the moral goodness is added in the manner of an accident, like a second degree of goodness. The moral goodness depends mainly on the so-called bonum in (or ex) genere, with a further degree of goodness flowing from the bonum ex circumstantiis. The end of the action is often referred to as one of the circumstances. By way of example, I will consider here the position of Albert the Great. For Albert, actions are ultimately caused by God, and thus contain a natural goodness to which moral goodness or badness relate like accidents (bonitas et malitia accidunt actioni). Granted that moral goodness and badness are nonessential features of actions in their natural dimension, the question becomes whether this is true for moral actions as well. For Albert, the answer is yes: good and bad, that is, the moral quality of an action, are considered accidental and not essential features of moral actions, just as fast and slow are accidental marks of motion. 22 One has the impression that when discussing moral actions, Albert's account is too closely tied to the ontological viewpoint. For Albert, good and bad cannot be considered as two substantial 21 Lombard, II Sent., d. 36 cap. 6, n. 5: "Satis diligenter eorum posuimus sententiam, qui dicunt omnes actus naturas bonas esse, et in quantum sunt bonos esse.... Addunt quoque quosdam non tantum essentia, sed etiam genere bonos esse, ut reficere esurientem, qui actus est de genere operum misericordiae. Quosdam vero actus absolute ac perfecte bonos dicunt, quos non solum essentia vel genus, sed etiam causa et finis commendat, ut sunt illi ex bona voluntate proveniunt et bonum finem metiuntur." 22 Albertus Magnus, II Sent., d. 40, a. 1, sol., ed. Borgnet, vol. 27 (Paris: Vives, 1894). St. Bonaventure gives a similar account: II Sent., d. 41, a. 1, q. 2, in Opera omnia 2 (Quaracchi: Editio Collegii S. Bonaventurae, 1885). Cf. S. Pinckaers, "Le role de la fin dans !'action morale selon saint Thomas," in Pinckaers, Le renouveau de la morale (2d ed.; Paris: Tequi, 1979), 114-43, at 117-18. END AND OBJECT IN AQUINAS 81 forms that would constitute two different species of the genus Evil is a "voluntary actions." Three arguments show this: privation. And since privations do not specify things, it foHows that evil does not specify the moral action. (2) Though an act of sexual intercourse can be good or bad (e.g., a conjugal act as opposed to an act of fornication), the good and bad act belong to the same species. The same holds for the act of giving alms: though it can be good or bad (e.g., insofar as it is performed with a good or a bad intention), good and bad do not alter the species of the act. (3) That which is the cause of a substance is also the cause of its specific difference. Yet the (ultimate) cause of the action-God-is not the cause of its being evil. Therefore, good and bad are not specific differences of the action. 23 As a result of this outlook, morality tends to be considered more from the perspective of the action itself than from that of the agent. Thus the predominantly ontological perspective obscures the specifically moral character of actions. Albert's account of the conditions for moral goodness and badness reflects this limited viewpoint. Albert is very dear about the fact that moral actions originate in reason and will. 24 Yet he does not define the value of moral actions from this origin, but describes it rather as an accident added to the natural goodness of actions. He thereby fails to conceive of the factors that constitute the moral goodness of actions as originating from the agent and as extending towards the exterior act. Like Peter Lombard, Albert mentions a number conditions that constitute the moral goodness of actions. The most general condition, constituting the bonum in genere, is a debita materiathe matter with which the action is dealing should be "suitable." Each act must have the right proportion to its materia, as feeding is rightly proportioned to the hungry, teaching to the ignorant, comforting to someone who is sad. Other acts cannot be in right 23 24 Albert, H Sent., d. 40, a. 1. See above, note 1. TOBIAS HOFFMANN 82 proportion to any materia (e.g., acts of adultery or murder). 25 And there are still further conditions for moral goodness, namely, that actions be performed for a good end and from a good intention (the intention regards the means to the end) and that all circumstances be appropriate. 26 None these factors (debita materia, good end, good intention, appropriate circumstances) can be missing. Albert cites the famous adage of Dionysius: "Good results from the entire cause, evil from each particular defect." As Albert explains, each factor of moral goodness is an integral cause constituting the morally good action, just as each wall is an integral cause of a house. 27 This explanation reveals a weakness intrinsic to Albert's account of moral goodness, because he does not indicate any order of priority among those factors. Clearly, the end of the action has no privileged role in Albert's explanation. Yet, from the theological point of view, the end of the action (under different viewpoints understood as charity, beatitude, or God) plays the primary role, From this perspective, the aforementioned conditions must course be taken into account: the debita materia, the intention, and the circumstances. For the philosopher' on the other hand, there is no unifying motive for an actions. Albert emphasizes this contrast in his discussion of indifferent acts: for the philosopher, there can be many indifferent acts, because there is no unifying virtue that would relate all acts to a final end. By contrast, the theologian considers charity to be the virtue that is the ultimate purpose of acts, Thus there are no morally indifferent acts, since each act must be motivated by charity. 28 Albert, De bona, tract. I, q. 2, a. 4. Albert, H Se-rit., d. 38, aa. 1-2; d. 41, a. 2, sol. 27 Albert, H Sent., d. 41, a. 2, sol.; cf. Pseudo-Dionysius, De divinis nominibus, cap. 4, n. 30,PG 3 (Paris: Migne, 1857), 729; Dionysiaca vol. I (Paris: Desdee de Brouwer, 1937), 29899: "Bonum ex una et tota causa est, malurn autem ex quolibet et particulari defectu." 28 Albert, De bono, tract. I, q. 2, a. 7, sol.; cf. H Sent., d. 40, aa. 3-4, sol. Cf. 0. Lotrin, des actes humaines chez saint Thomas d' Aquin et ses predecesseurs," in Lottin, Psychologie et morale aux XII' et XIIJ' siecles, vol. II, 1, 469-89, at 470-73. 25 26 END AND OBJECT IN AQUINAS 83 N.AQUINAS Aquinas, like Albert, discusses the question whether good and bad are essential differences of the moral action, but his solution is radically different from that of his teacher. 29 Thomas cites some of Albert's arguments in the objections and draws the opposite conclusion, developing a new understanding of what is at the core of morality. Consequently, he profoundly alters the understanding of moral goodness and of its constituent factors. Actions are specifically different according to the diversity of forms, which are the principles of the actions, even though the agents might not differ specifically. For instance, heating and cooling are specifically different, just as are heat and cold. Now, the form of the will is the end and the good, which is its object (i.e., that which is willed). Therefore, in the acts of the will it must be the notion of the end that determines the specific difference. And since acts have an ethical dimension because they are voluntary, the difference in species in the moral order depends on the diversity of the end. Since good and bad depend upon the relation [of the act] toward the end, they have to be essential differences in the moral order. 30 29 0. Lottin, "Les elements de la moralite des actes chez St. Thomas d' Aquin. Commentaire de Ia llae, q. 18-21," Revue neoscolastique de philosophie 24 {1922): 25-65, 281-313, 389429; 25 {1923): 20-56; W. Kluxen, Philosophische Ethik bei Thomas von Aquin {Mainz: Matthias Griinewald, 1964), 166-205; Th. G. Belmans, "La specification de l'agir humain par son objetchez S. Thomas d'Aquin," Divinitas 22 {1978): 336-56; 23 (1979): 7-61; Pinckaers, "Le r&le de la fin dans )'action morale scion saint Thomas"; S. Pinckaers, notes in Somme tbeologique: Les actes humains (!"II", qq. 18-21) (Paris: Cerf, 1966); idem, "La question des actes inttinsequement mauvais. Etude historique," in S. Pinckaers, Ce qu'on ne peut jamais faire (Fribourg: Editions Universitaires; Paris: Editions du Cerf, 1986), 20-66; D. Gallagher, "Aquinas on Goodness and Moral Goodness," in D. Gallagher, ed., Thomas Aquinas and His Legacy, Studies in Philosophy and the History of Philosophy 28 (Washington, D.C.: The Catholic University of America Press, 1994 ), 3 7-60; R. M. Mcinerny, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington, D.C.: The Catholic University of America Press, 1997), 79-90. 30 II Sent., d. 40, q. 1, a. 1, ed. Mandonnet (Paris: Lethielleux, 1929): "Respondeo dicendum, quod actiones differunt specie secundum diversitatem formarum, quae sunt principia actionum, quamvis etiam agentia specie non differant: sicut calefacere et infrigidare differunt specie, sicut calor et frigus. Forma autem voluntatis est finis et bonum, quod est ejus objectum et volitum; et ideo oportet quod in actibus voluntatis inveniatur differentia specifica secundum rationem finis. Et quia actus sunt in genere moris ex hoc quod sunt voluntarii; ideo in genere moris est diversitas speciei, secundum diversitatem finis. Et quia malum et bonum sumuntur secundum ordinem ad finem, ideo oportet quod sint essentiales differentiae in genere moris." Cf. De virtutibus, q. 1, a. 2, ad 3; ST'h 1-11, q. 18, aa. 5-6. 84 TOBIAS HOFFMANN It is due to the between the natural the moral dimension of actions Albert's objections lose their weight. (1) Good bad are specific differences of the action not qua action, qua voluntary action. In the natural order, a conjugal act is not specifically different from an act of fornication, in the ethical order they are quite different. (3) as a anything to the essence of the specific difference does not action insofar as the action partakes in being (which of course is caused by God), but it does insofar as it is founded upon an end 31 that is unsuitable for the Thomas is guided the in the domain of ethics the essential properties of actions are constituted by that which makes them voluntary actions. Voluntary actions are actus or actus proceeding from (i.e., the will connection with reason). 32 The text of the Sentences Commentary focuses on the will. In the Summa, however, Thomas not only reiterates main points with respect to the will (STh Ialso attributes the specification of moral acts q. 18, a. to reason (STh q. 18, a. This is significant, because reason are complementary with respect to the elements that constitute the act of the will is the interior act and is end, whereas reason regards object of the related to exterior act. The key passage of article 5 is as foHows: Now in human actions, and evil are predicated in reference to the reason . for a thing which suits it in regard to its form; and evil, that . . . For that is which is against the order of its form. It is therefore evident that the difference of good and evil considered in reference to the object is an essential difference in relation to reason; that is to say, according as the object is suitable or unsuitable to reason. Now certain actions are called human or moral, inasmuch as they proceed from the reason. Consequently it is evident that good and evil diversify the species in human actions; since essential differences cause a difference of species. 33 31 II Sent., d. 40, q. 1, a. 1, ad 1 (reply to Albert's first objection), ad 4 (reply to Albert's second objection), and ad 2-3 (reply to Albert's third objection). 32 Aquinas describes human actions as voluntary actions (STh I-II, q. 1, a. 1; I-H, q. 6, a. 1) and identifies actus morales with actus humani (STh I-II, q. 1, a. 3). 33 STh I-H, q. 18, a. 5: "In actibus autem humanis bonum et malum dicitur per comparationem ad rntionern .... Unicuique enim rei est bonum quod convenit ei secundum suam formam; et malum quod est ei praeter ordinem suae formae. Patet ergo quod differentia END AND OBJECT IN AQUINAS 85 In both texts, the viewpoint is no longer that of the natural order in which moral goodness and badness appear to be accidental features of the act. Instead, the perspective has changed: with the consideration of the natural order set aside, actions are now considered exclusively in the moral order. Here their genuinely ethical dimension is not an accidental feature but rather the starting point of all further considerations. Moreover, moral goodness and badness are essential characteristics of the action. Described from the standpoint of the moral order, actions are specified by forms-not by substantial forms, as Albert had understandably ruled out in his discussion of the topic, but rather by forms in an analogical sense. In each of the two texts quoted above, the notion of "form" takes a different meaning. In the quotation from the Sentences Commentary, the form is described as a principle of action. As a principle of action, this specifying form is not considered from the point of view of the exterior act (i.e., the act of any other potency of the soul or of the bodily members), but from the perspective of the interior act (i.e., the act of the will) which commands the exterior act. 34 The form of the wiU is its object, which is the end and the good. 35 Therefore, when the will desires a good end (e.g., to help the needy), then the will itself is good, and when it wills a bad end (e.g., to act for the sake of vainglory), then the will itself is bad. In the text of the Summa, however, the form is not the principle, but rather the criterion for a good or bad action. This boni et mali circa obiectum considerata, comparatur per se ad rationem, scilicet secundum quod obiectum est ei conveniens vel non conveniens. Dicuntur autem aliqui actus humani, vel morales, secundum quod sunt a ratione. Unde manifestum est quod bonum et malum diversificant speciem in actibus moralibus, differentiae enim per se diversificant speciem" (trans. English Dominicans [London: Burns, Oates, and Washbourne, 1912-36; repr. New York: Benziger, 1947-48; repr. New York: Christian Classics, 1981]). All English quotations from the Summa are taken from this edition. 34 STh I-II, q. 20, a. 1, c and ad 3. Cf. D. Gallagher, "Aquinas on Moral Action: Interior and Exterior Act," Proceedings of The American Catholic Philosophical Association 64 (1990): 118-29. 35 STh I-II, q. 1, a. 1; ibid., ad 2: "obiectum voluntatis est finis, sicut obiectum visus est color." TOBIAS HOFFMANN 86 criterion is the due proportion of an object to reason. In this sense, there can be good or bad objects of an act. The term "object" is of course not understood in the ontological sense (in fact, all things are good insofar as they are), but as the materia circa quam, that is, what the agent is doing (thinking, walking, stealing, etc.). For example, the object "to make use of what is one's own" (uti re sua) is properly proportioned to reason, but "to take what belongs to another" (accipere aliena) does not have this proportion. 36 In this new perspective, in which the moral character of actions is considered according to their principle (the will with its end) in light of the criterion for their goodness and badness (the object as judged by reason), the question of what constitutes the moral goodness of the actions is altered as well. The main focus lies no longer in a sequence of degrees of goodness, namely, natural goodness, bonum ex genere, as well as the goodness that comes from the end and the circumstances. Rather, the question of moral goodness concerns the interrelationship between the interior act and the exterior act. How does the interior act of the will communicate its goodness or badness to the exterior act of other potencies of the soul or of the bodily members, and, inversely, how does the goodness or badness of the exterior act determine the moral value of the interior act? This comes down to the question of how the end as the object of the will, on the one hand, and the object of the exterior act, on the other hand, are intertwined in moral action. 37 The analysis of this question will reveal in which way the two specifications of moral action that Aquinas mentions in the Summa (one by the will and the other by reason) are related to each other. The interior and exterior act together constitute one action. Thomas's view about how they do this evolved from his Sentences 36 STh I-II, q. 18, a. 2, c and ad 1. The ambiguity of the term "object" is particularly manifest in this context. The object is that which actualizes a potency, as color actualizes sight and as the end actualizes the will (see above, note 35). The object of the exterior act is the materia circa quam, that is, that which the act is about, for instance, "to make use of what is one's own" or "to take what belongs to another." 37 END AND OBJECT IN AQUINAS 87 Commentary to the later De Malo and the Summa. At the beginning of his career, Aquinas held the position that the interior acts of the will alone pertain to the moral order, whereas the exterior acts that are commanded by the will belong to the moral domain only per accidens.38 In later texts, however, he considers the interior and exterior act to be joined by an essential unity: Now that which is on the part of the will is formal in regard to that which is on the part of the external action: because the will uses the limbs to act as instruments; nor have external actions any measure of morality, save in so far as they are voluntary. Consequently the species of a human act is considered formally with regard to the end, but materially with regard to the object of the external action. 39 The interior and exterior act are linked so as to communicate to each other their goodness and badness. The interior act influences the goodness of the exterior act in the order of the execution of the act as a whole. Insofar as an act is ordered to an end, it originates in the interior act of the will and its goodness depends on the will, because the end is the proper object of the will. The will commands the execution of exterior acts and orders them to an end. Therefore, an exterior act which is by itself good can become corrupted by a bad intention, as when someone gives alms in order to be praised. Inversely, by way of preconceiving and desiring exterior acts, that is, in the order of intention, these acts can corrupt the internal act of the will. If bad acts like theft, adultery, or homicide become the object of the will, the will itself becomes bad. 40 Since the end is the primary principle of moral action, no deliberate action can be good if it is not ordered to a suitable end. For this reason, Aquinas denies that any individual act may be indifferent. 41 II Sent., d. 40, q. 1, a. 1. STh I-II, q. 18, a. 6. Cf. De Malo, q. 2, a. 2, ad 5 and ad 11, Editio Leonina 23 (Rome: Commissio Leonina; Paris: Vrin, 1982); STh HI, q. 17, a. 4. 4-0 De Malo, q. 2, a. 3. 41 STh I-II, q. 18, a. 9; II Sent., d. 40, a. 5; De Malo, q. 2, a. 5. 38 39 TOBIAS HOHMANN 88 one considers exterior acts themselves, however, in interior act of the the abstracting from perspective changes. Now their goodness depends on the fact that their object circumstances be ordered to reason. whether an act In fact, it is apparent to reason, not to the concerns the suitable matter (materia) and circumstances. 42 For example, it is apparent to reason that a conjugal act is a fitting an act adultery is an unfitting object, even though object, with respect to the generative both acts can be good. 43 the perspective of exterior act taken itself, even the end appears as a circumstance, with respect to the 44 Moreover, from this point order, the end is an of view the discussion the constituent factors moral goodness is legitimate. Aquinas does fact echo account at the beginning of his treatise on the goodness and badness of actions, in strict analogy to goodness" In articles 1-4 question he considers first the analogy between moral goodness, examines the moral quality that comes from the object, the circumstances importantly-the end. sum, in Aquinas's account the origin goodness lies in the wiH of the agent and proceeds to the exterior action, which has objective criteria of goodness are assessed by a judgment of reason" Additionally, the effects of an action have to be taken into account, insofar as they either can be foreseen or insofar as follow per se the act. 45 comparison to earlier accounts, Aquinas inverts the process determines the moral goodness of an actions. The starting point is no longer the action's natural goodness to which the nonu1m ex genere and the circumstances are added. By contrast, the will and the end as its object, and moral goodness originates extends to acts that are commanded the Accordingly, the STh HI, q. 20, aa. 1-2; I-H, q. 18, a. 5; I-II, q. 18, a. 10. STh I-II, q. 18, a. 5, c and ad 3. 44 STh I-II, q. 18, a. 6, ad 2; I-H, q. 1, a. 3, ad 3. 45 SI'h I-II, q. 20, a. 5. 42 43 END AND OBJECT IN AQUINAS end as intended by the agent now plays a pnme role qualification of moral actiono 89 the Vo DUNS SCOTUS The starting point of Duns Scotus's moral theory is not the tradition that goes back to Peter Lombard. Rather, his ethics is based upon an analysis of the Aristotelian notion of praxiso Interestingly, his account of the moral qualification of actions closely resembles that of Lombard, although it is based upon this new foundationo For Duns Scotus the question of what constitutes the moral order as opposed to the natural order depends on his conception of practical science (scientia practica). The object of practical is an act of the will presupposes the science is praxis, reason. Primarily, the notion of praxis indicates judgment of the interior act of the will (actus elicitus)o46 If praxis as the object of ethics springs from an act of the will that follows upon right reason, it would seem that praxis-and consequently ethics-is primarily defined by the relation of an act to its end. Yet for Scotus this is not so. The is not characterized mainly by its pursuit of an end, but by its freedom to act or not to act, or to perform this action or its opposite. 47 Not surprisingly, then, a consideration is not called practical knowledge because it considers a certain end to be realized. Rather, practical knowledge depends on the object and the intellect 48 A craftsman has practical 46 Ordinatio pro!., p. 5, qq. 1-2, nn. 228-34, Editio Vaticana 1 (Rome: Typis Polyglottis Vaticanis, 1950). Ct H. Mohle, Ethik als scientia practica nach Johannes Duns Scotus: Eine philosophische Grundlegung, Beitriige zur Geschichte der Philosophie und Theologie des Mittelalters, Neue Folge 44 (Munster: Aschendorff, 1995), 20-81. 47 Quaestiones super libros Metaphysicorum Aristotelis IX, q. 15, nn. 20-21, Opera philosophica 4 (St. Bonavenrure, N.Y.: Franciscan Institute, 1997). The will is even free to will or not to will the ultimate end of happiness, Lectura I, d. 1, po 2, q. 2, n. 118, Editio Varicana 16 (Rome, 1960); Ordinatio IV, d. 49, suppl. qq. 9-10, n. 8, Opera omnia 21 (Paris: Vives, 1894). Cf. T. Hoffmann, "The Distinction between Nature and Will in Duns Scotus," Archives d'Histoire Doctrinale et Litteraire du Mayen Age 66 (1999): 189-224. 48 Scotus opposes himself directly to Godfrey of Fontaines and Henry of Ghent (for references, see Edirio Varicana 1:164, 168), but indirectly also to Aquinas, De Veritate, q. 3, a. 3, Edirio Leonina 22/1 (Rome: Editori di san Tommaso, 1975), 107a-b; and STh I, q. 79, 90 TOBIAS HOFFMANN knowledge (the knowledge that allows him to produce furniture, for example) not because he actually intends to realize this or that piece of furniture as his end, but because of his capacity to produce it. Likewise, a surgeon has practical knowledge even when he does not want to operate, thus when he does not intend a certain end. Therefore, the craftsman's and the surgeon's practical knowledge depends not on the end they intend to pursue, but on the type of object with which they are concerned (e.g., wood rather than stones, human bodies rather than machines) and on their intellect. 49 The subject of ethics is not defined by the end, which is happiness. 50 Just as the object of the act is the essential condition for practical knowledge, it is also that factor which first specifies the moral act. 51 The end is a secondary factor in practical knowledge and appears as a mere circumstance in the analysis of moral goodness. In distinction 7 of the second book of his Sentences Commentary, Scorns distinguishes a threefold moral goodness that adds to the natural goodness of an act insofar as the act is a positive being. Three degrees of badness correspond to the three levels of moral goodness. this text, he actuaHy analyzes the moral goodness from the perspective of the act of the will (volitio) without explicit discussion as to how this extends to the exterior act. 52 The act of the will has the first moral goodness ("ex genere") insofar as it extends to an object that suits this act according to the prescription of right reason. Scorns gives the example of almsgiving. On account of its having a suitable object, the act already belongs to the moral order (genus moris). The act of the will has a second type of moral goodness ("bonum specie a. 11. Ordinatio proL, p. 5, q. 1-2, n. 252; Lectura proL, p. 4, q. 1-2, n. 147. Ordinatio pro I., p. 5, q. 1-2, n. 262. 51 Ordinatio pro!., p. 5, q. 1-2, n. 264. 52 Duns Scotus discusses the relation of the interior to the exterior act in question 18 of his Quodlibetal questions. He holds that all moral actions are imputable to the will: the interior acts of the will directly and the commanded exterior acts indirectly, Quodl. q. 18, nn. 9-10, Opera omnia 26 (Paris, 1895). Though the exterior act is commanded by the will, it has its own proper moral goodness, ibid., n. 12. 49 50 END AND OBJECT IN AQUINAS 91 moris") in addition to the first one, when the will follows reason's prescription with respect to all the circumstances that the act must have. Scotus gives the example of almsgiving from one's own goods, to a poor person in need, in a place that is most appropriate to the poor, and from love of God. 53 If in addition to these two conditions the act of the will arises from charity, it possesses a third degree of goodness. It is then performed not from natural inclination alone, but from charity, that is, from grace. 54 This division of different types of moral goodness is based on the principles of each type of goodness: reason, the will, and grace. It says little about the relation between the object, the end, and the circumstances. The central discussion of this set of relations is in distinction 40 of book IL Here I cite from the Ordinatio: [11he first reason for its goodness is its appropriateness to the agent in question, namely, because it is free it is said to be moral. And this is something a morally good and a morally bad act have in common, for if an act is not from the will, then it is neither praiseworthy nor reprehensible. The second condition has to do with the object. If this is something appropriate, then the act is good generically, because it is still indifferent to the further aspects of goodness that arise because of the special circumstances, just as the genus is indifferent with respect to many differences. After this the first circumstance is that of the end itself. But this does not suffice apart from the other circumstances, such as the circumstance of its form, for example, that it take place in a becoming fashion, a point pertaining to the fourth circumstance, after which come the more extrinsic circumstances, such as time and place and the like. 55 53 As is clear from the context, Scotus has in mind a natural love of God. Charity is proper to the third degree of moral goodness. 54 Ordinatio II, d. 7, q. un., nn. 28-33. Cf. Lectura II, d. 7, q. un., n. 24; Reportatio II A, d. 7, q. 1-3, n. 27, Opera omnia 22 (Paris, 1894). Cf. Mohle, Ethik als scientia practica, 278329. 55 Ordinatio II, d. 40, q. un., nn. 9-10, Editio Vaticana 8 (Rome, 2001): "Sed prima ratio bonitatis eius est ex convenientia actus ad efficiens, a quo actus dicitur 'moralis' quia libere elicitus; et isrud est commune et actui bono et malo: neque enim est laudabilis neque vituperabilis, nisi sit a voluntate. Secunda condicio est ex obiecto: quod si conveniat, actus bonus ex genere,--sed istud est indifferens ad bonitates ulterius, quae sumuntur ex circumstantiis specialibus, sicut genus est indifferens ad multas differentias. Post istud prima circumstantia est primus finis; nee ista sufficit sine aliis, sicut circumstantia formae (puta quod debito modo fiat, quod pertinet ad quartam circumstantiam),--et sequuntur circumstantiae magis extrinsecae, scilicet 'quando' et 'ubi'" (in A. B. Wolter, trans., Duns Scotus on the Will 92 TOBIAS HOFFMANN What is striking in this text is that the end is considered a to be circumstance-albeit the most important one. Like Albert the Great, Duns Scotus considers the end as the principal cause of moral goodness only from the theological point of view: the act has goodness of merit (which is added upon moral goodness) when it is elicited from charity. 56 Given that Scotus does not consider the end to be the primary and unifying factor of all moral actions, it is not surprising that he admits the existence of indifferent acts-not only in species, but also in individual cases, and even with respect to meritorious acts (because God does not command to refer all our acts to God). 57 VI. CONCLUSION The authors whose theory most resembles that of Thomas Peter Abelard and Peter Lombard. In these authors, the moral assessment of actions is considered mainly from the perspective of the agent, focusing on the end that he pursues. Let us first consider Abelard and Aquinas. In neither does this imply a subjectivist account of ethics. In fact, both authors consider the role of the end in relation to the external actions that are actually performed. Both affirm objective criteria not only for the action, but also for the end. In Abelard, the action must be truly pleasing to God and must be intended as such. In Aquinas, the objective value of external actions is assessed by reason, which judges the object of the action and its circumstances to be suitable to reason or not. In other words, the criterion for goodness is derived from the object. The will is the origin of the action, insofar as it intends that action for its own sake or as a means to something else. From this perspective, the goodness depends on the end. This goodness is no less objective than the goodness that comes from the object. In fact, certain ends are objectively good (insofar as they truly lead and Morality [Washington, D.C.: The Catholic University of America Press, 1986), 227). Cf. Reportatio II A, d. 40, q. un., n. 3; Quodlibet q. 18, n. 6. In the early Lectura, Scotus actually considers the end to be more important than the object (Lectura II, d. 40, q. un., n. 9). 56 Ordinatio II, d. 40, q. un., nn. 9-10. 57 Ordinatio II, d. 41, q. un. Cf. Lectura II, d. 41, q. un.; Reportatio II A, d. 41, q. un. END AND OBJECT IN AQUINAS 93 to happiness), while others are objectively bad. For Aquinas, the end is the essential factor of moral action. Only when considering the external act by itself or from the point of view of natural goodness is the end an accidental factor of the action. In Peter Lombard, the pursuit of a good end is central. Yet his discussion of natural goodness and moral goodness has led some thinkers to depart from this view (at least in their philosophical perspective). Albert the Great and Duns Scotus differ from Aquinas mainly in that they consider the end to be an accidental feature of the action. In Albert, this is due to the fact that his point of departure is the natural goodness that the action has insofar as it is, whereas the moral character of actions is added like an accident to its natural goodness. In his view, the end adds a further degree of goodness to natural goodness and to the bonum ex genere, which is due to a suitable object. Scotus comes to a similar conclusionthe end of an action is less important than its object-though on the basis of different presuppositions. Each of these latter views takes all factors of a morally good action into account: a good object, a good end, appropriate circumstances. Nevertheless, they neglect to relate these factors in such a way that properly takes the dynamic of the human will and reason into consideration. As theologians, however, Albert and Duns Scotus attribute the highest importance to the end, as informed by charity. By insisting on the primary role of the end in moral actions, Aquinas conceives of morality essentially as the pursuit of an end. The problem of good and evil is mainly a question of what end one desires and how one goes about achieving the ends. This seems to be in agreement with experience: as humans, we act for a reason. Therefore, Thomas's remark that "the principle of human acts, insofar as they are human, is the end" 58 can be understood as follows: we cannot carry out an action that truly 58 STh I-II, q. 1, a. 3: "principium humanorum actuum, inquantum sunt humani, est finis." TOBIAS HOFFMANN 94 corresponds to our nature if we do not perform it with the desire for some end, that is, for an ideal. 59 59 I am grateful to Joe McCoy for his assistance with the English of this article. The Thomist 67 (2003): 95-118 THE MULTIFARIOUS MORAL OBJECT OF THOMAS AQUINAS KEVIN L. FLANNERY, S.J. Pontifical GregorianUniversity RDme, Italy C ONTEMPORARYETHICS tends to simplify the moral universe by recognizing relatively few factors as determinants of morality. A person is virtuous if he is respectful of others, reliable, industrious, tolerant of differences. Or he is immoral if he acts uncharitably, lacks compassion, or is disrespectful of the rights of others. Even if, for instance, a violation of the rights of another is brought about by means of particular type of action-by, for instance, failing to respect a contract previously agreed to-the determining factor is not the lack of correspondence between what is done and what was promised but rather the attitude that leads to acts of that type, which attitude could just as well be understood as a lack of compassion or of fellow-feeling. The moral universe that Thomas Aquinas depicts in his ethical writings is a much more complicated affair. 1 Of course, the more general virtues are important in his theory: faith, hope, and 1 See Thomas's De Malo, q. 2, a. 9, where he argues against the Stoics who saw all sins as one: going against reason. He argues that such an approach finishes in a sort of legalism. Since there are no real distinctions among sins, sin comes to be associated with crossing lines: that is, the various boundaries between reason and unreason. "And they say similarly that, given that someone in erring goes beyond rightness of reason, it makes no difference in what manner and for what reason he does this: as if to err were nothing other than to cross certain preset lines" ("Et similiter dicebant, quod non refert dummodo aliquis peccando rectitudinem rationis praetereat, qualitercumque vel ex quacumque causa hoc faciat, ac si peccare nihil esset aliud quam quasdam positas lineas transire"). 95 96 KEVIN L. FLANNERY,S.J. charity; prudence, temperance, fortitude, and justice. But in addition to these, he recognizes a number of other, subsidiary virtues: the various types of justice (distributive, commutative, general, and particular), religio, and epieikeia,for instance. If we turn to vices (while bearing in mind that the structure of vice mirrors that of virtue), the picture becomes more interesting still. There we find gluttony, derision, back-biting, simony, ingratitude, presumption, pusillanimity, cruelty, etc. But even this does not fully capture the difference between the Thomistic moral universe and that of contemporary ethics. It is not as if Thomas were more willing than we typically are to divide up the various types of virtue. Rather, in good Aristotelian fashion, he starts from the wide variety of acts regarded as moral or immoral in the world in which he lives, and then seeks to understand them by analyzing their characteristics and by classifying them according to type. One way to gain an appreciation of all this is to study Thomas's understanding of the object of the moral act, since the object is the place where our actions hook onto the moral universe-and hook on to it, indeed, at discrete, well-defined points. I propose, therefore, in this essay to examine fairly closely the corpus of Summa Theologiae I-II, question 18, article 2, in which Thomas confronts the question whether an act of man has its goodness or badness from its object. This passage will serve as springboard for the consideration of other related passages both in Thomas and in other authors, especially Albert the Great. I Here are the first couple of sentences of STh I-II, q. 18, a. 2: I respond that, as was stated above, the good and evil of an action, as also of other things, depends upon fullness of being or the defect thereof. The first thing, however, that appears to pertain to fullness of being is that which gives a thing its species. Just as a natural thing has its species from its form, so an action has its species from its object-and so also a movement [has its species] from its terminus. MULTIFARIOUS MORAL OBJECT 97 We might very well ask, why does goodness depend on fullness of being? The basic building blocks of the physical world are substances, such as animals, which are characterized by unity and sense: they "hang together." We come to understand what a snail is, for instance, once we understand what parts it has and how they fit together to enable a snail to do what snails do. The unity is important since without it the good of the snail is not achieved. If snails' brains were not such as to connect up with their sensory organs, they would never have existed; there would be no species "snail." And if an individual snail's brain fails to connect up with its sensory organs, it dies: it descends into nonbeing or, perhaps, never enjoys being (as a snail) in the first place. A snail that lacks unity and sense-whose defective parts do not allow it to function as it should-is like a bad argument. If a person employs an invalid syllogistic figure such as fails to establish a link between the major and the minor terms, his argument fails because it lacks intelligibility: he fails to link up one intelligible unit with another and thus to bring us (and himself) to the desired conclusion. 2 So also a snail whose overall functioning is impeded in such a way that its end cannot be achieved. In both these cases there is not only a lack of intelligibility and of good achieved; there is also a lack of being. Of course, if a snail 2 Thomas speaks of the parallel between syllogisms and moral actions at De Malo, q. 2, a. 6, ad 13: "the similarity of a conclusion to a moral action has to do with the way in which, just as the use of a syllogism finishes with a conclusion, so the movement of reason in morals finishes with a work" ("similitudo conclusionis ad actionem moralem attenditur quantum ad hoc quod sicut actus syllogisticus terminatur ad conclusionem, ita processus rationis in moralibus terminatur ad opus"). See also II Sent., d. 40, q. 1, a. 2, where he is listing the things required of a good counselor: "Secondly, [it is necessary] that, in order to achieve the good end, he find a good work through which the end is achieved; so, if someone should intend to achieve a good end by means of an evil action, he is not a good counselor, for, as [Aristotle] says [ENVI, 9, 1l42b22-26], he aligns the end with an inappropriate means in such a way that that which is ordered toward the end is not proportionate to that end-as if someone should draw a correct conclusion by means of an ill-suited middle term" ("Secundo, quod ad finem bonum consequendum adinveniat bonum opus, per quod finem consequatur; uncle si quis bonum finem consequi intendat per malam actionem, non est bonus consiliator: quia, ut ipse aO?.ov Kai ljleKT6v,TO 6' dATJ0i:c; KaMv Kai tnaivn6v. 110 KEVIN L FLANNERY, S.J. for Thomas jocose and officious lies (the latter being lies "in which is intended the good of one's neighbor") are, except in special circumstances, venial sins. We ought not to commit them, but they do not destroy spiritual principle of life within us, as 26 do mortal sins. respect to the moral analysis of adultery, mentioned by Albert in De bono (tract. 1, q. 2, a. 4), the contrast with Thomas is even more stark As we have seen, considering the marriage act versus adultery, Albert does not think that we arrive at the bonum/malum in genere, alone at the genus presupposed by these two. On the other hand, with refreshing the thirsty, teaching the ignorant, or consoling the grieving, 27 insofar as these actions engage directly with the appropriate matter, we are at the level of the in genere (below which is the act of the will itself, the genus), with sexual intercourse appropriate matter (which genere) is not a wife but woman. That a determines the woman is one's wife is a circumstance, determined by promises, procedures, etc.; and circumstances, according to Albert, cannot determine the genus. Rather, circumstances are added on to the more basic level: intercourse has as its object a woman, who, as circumstances would have it, is either one's own wife or not. Thomas have none of this. For him, the very structure of the moral universe comprehends human constructs such as marriage vows. Marriage vows pertain to reason; since morality is about what is in accordance with reason (or not), when we arrive at the consideration of whether the woman is one's wife or 26 STh H-U, q. 110, a" 4: "Si vero finis intentus non sitcontrarium caritati, nee mendacium secundum hanc rationem erit peccatum rnortale, sicut apparet in mendacio iocoso, in quo intenditur aliqua levis delectatio; et in mendacio officioso, in quo intenditur etiam utilitas proximi. Per accidens autem potest contrariari caritati ratione scandali, vel cuiuscumque damni consequentis." According to Thomas (STh I-II, q. 88, a. 1, ad 1), the word "sin" is used only analogically of venial and mortal sin" On the issue of Thomas and lying, see L. Dewan, "Saint Thomas, Lying, and Venial Sin," The Thomist 61 (1997): 279-300., on which I rely heavily in these paragraphs on lying. 27 See Albert, De bono, tract. 1, q. 2, a. 4, ad 8. Note that ad 8 comes between ad 3 and ad 4. MULTIFARIOUS MORAL OBJECT 111 not, we are at bedrock: the bonum [ma/um] in genere.28 Given that we are rational animals, this is the most basic issue: that is, whether one is lying with one's wife (or not). Of course, lying with one's wife is lying with a woman; but the latter consideration belongs to quite a different sphere of analysis, even if it is true that one cannot lie with one's wife unless she is a woman. 29 Thomas makes this point in an especially clear manner in De malo, q. 2, a. 4. There the issue is whether all acts are indifferent. Those wishing to say that they are often attempt to introduce a nonmoral foundation for acts in order then to be able to say that, at bottom, all acts are indifferent (see, for example, objections 4 through 6). But Thomas insists on keeping the two spheres of analysis separate: So, if one considers objects of human acts that have differences according to something pertaining per se to reason, the acts will be different in species according to whether they are acts of reason, even if they are not different species according to whether they are acts of some other power. For example, to know one's own wife and to know a wife not one's own are acts having objects differing according to something pertaining to reason: "one's own" and "not one's own" are determined according to a rule of reason-which differences, however, are accidental with respect to the generative power or even to the concupiscible power. And therefore to know one's own and to know one not one's own differ in species according to whether they are acts of reason, but not according to whether they are acts of the generative or the concupiscible 28 See, for instance, IV Sent., d. 31, q. 1, a. 2: "I respond saying that matrimony is in the service of nature, and it is a sacrament of the Church. In so far as it is in the service of nature, as is any other act of virtue, it is ordered to two things, of which one is required of the agent, i.e., the intention of an appropriate end-and it is thus that offspring is considered a good of matrimony. The other is required of the act itself, which is good in genere in so far as it falls upon appropriate matter-and thus we have faithfulness, by virtue of which a man lies with his own [wife] and not with that of another" ("Respondeo dicendum, quod matrimonium est in officium naturae, et est sacramentum ecclesiae. Inquantum ergo est in officium naturae, duobus ordinatur, sicut et quilibet alius virtutis actus: quorum unum exigitur ex parte ipsius agentis, hoc est intentio finis debiti, et sic ponitur bonum matrimonii proles: aliud exigitur ex parte ipsius actus, qui est bonus in genere ex hoc quod cadit supra debitam materiam; et sic est fides, per quam homo ad suam accedit, et non ad aliam"). See also STh I-II, q. 18, a. 5, ad 3. 29 As we have seen, whereas with respect to killing Albert holds that the appropriate matter is animal (Albert, De bono, tract. 1, q. 2, a. 4, ad 7), Thomas holds that it is killing the innocentem (see III Sent., d. 23, q. 3, a. 1, sol. 3; also II Sent., d. 36, a. 5, obj. 2 and ad 2). 112 KEVIN L. FLANNERY, S.j. power. In so far as they are human acts, to that extent they are acts of reason; for this reason, therefore, it is dear that they differ in species in so far as they are human acts. 30 his Tractatus Logico-Philosophicus, as part of a general consideration of the logical structure of factual reality, the world is the metaphysical subject Wittgenstein asks, 31 to be noted?" Echoing Aristotle's De anima II, 4, he compares the reality that stands opposite the subject to the field of vision. The latter is made possible by the eye but the eye never appears in it-nor, Wittgenstein adds, is there anything in the field of vision from which it could be concluded that it is seen from an eye. Gathering the whole of reality into the subject this way has the effect of eliminating the subjective-the subjective, that is, the very common, post-Cartesian sense. 32 As Wittgenstein puts it: «Here we see that solipsism strictly carried out coincides with pure realism. The I in solipsism shrinks to an extensionless point and there remains the reality co-ordinated with it. " 33 "Si ergo obiecta hurnanorum actuum considerentur quae habeant differentias secundum per se ad rationem pertinentes, erunt actus specie differentes, secundum quod sunt actus rarionis, licet non sint species differentes, secundum quod sunt actus alicuius alterius potentiae; sicut cognoscere mulierem suam et cognoscere mulierem non soom, sunt actus habentes obiecta differentia secundum aliquid ad rationem pertinens; nam suum et non suum determinantur secundum regulam rationis; quae tamen differentiae per accidens se habent si comparenrur ad vim generativam, vel etiam ad vim concupiscibilem. Et ideo cognoscere suam et cognoscere non suam, specie differunt secundum quod sunt actus rationis, non autem secundum quod sunt actus generativae aut concupiscibilis. In tantum autem sunt actus humani in quantum sunt actus rarionis; sic ergo patet quod differunt specie in quantum sunt actus humani" (De malo, q. 2, a. 4). See also STh I-H, q. 18, a. 5, especially ad 3. for a similar treatment of killing (considered alongside adultery by Albert in De bono, ttact. 1, q. 2, a. 4, ad 7), see STh I-H, q. 1, a. 3, ad 3; also m Sent., d. 23, q. 3, a. 1, sol. 3. 31 L. Wittgenstein, Tractatus Logico-Philosophicus, trans. C. Ogden (London, Boston, Henley: Routledge & Kegan Paul, 1981), 5.633. Ogden, whose translation I use, emphasizes the first two words, "Where in ... " [Wo in ... ]; I follow Pears and McGuinness in emphasizing only "in." 32 See K. L. Flannery and P. Moser, "Kripke and Wittgenstein: Intention without Paradox," Heythrop Journal 26 (1985): 313-15. 33 "Hier sieht man, class der Solipsismus, streng durchgefiihrt, mit dem reinen Realismus zusammenfiillt. Das kh des Solipsism us schrumplt zum ausdehnungslosen Punkt zusammen, und es bleibt die ihm koordinierte Realitit" [Wittgenstein, Tractatus Logico-Philosophicus, 5.64]. 30 MULTIFARIOUS MORAL OBJECT 113 Although it is distinct from the factual universe of the Tractatus Logico-Philosophicus, Thomas's moral universe can be understood in much the same way. Since it is made up entirely of the same type of reality, the possibility of playing one type off against another is excluded. One cannot argue, for instance, that a doctor, physically speaking, may have crushed the skull of a fetus but his intention was good-he did it, for example, in order to save the life of the mother or in order to ensure her mental health. Nor does one offer a full account of the ethical status of an adulterer by saying that he is charitable and compassionate. Thomas's moral universe is much more complicated than that. Ethics is about human actions, and one engages in ethical analysis by asking, first of all, whether the basic thing done is in accordance with reason or not. A surgical intervention that falls upon the skull of a fetus rather than upon its appropriate matter, a diseased or otherwise dangerous organ, is not reasonable since it is vitiated in its object. Intercourse with one's wife, the appropriate matter of human sexual relations, is in itself reasonable, although, due to circumstances, it may be unreasonable. Appropriate and inappropriate matter is (nearly) as multifarious as the actions to which it corresponds-and it is always determined by what is or is not in accordance with reason. IV What about those acts which even Thomas acknowledges do not have an object that is good or bad in genere? Granted that acts such as giving food to the hungry and drink to the thirsty hook right on to the moral universe (i.e., at their objects) in such a way that we cannot pull their moral content away from the acts themselves, do not acts that are not bonum [ma/um] in genere, such as "to pick up straw from the ground or to go into a field," take on moral character as a sort of addendum? For even Thomas acknowledges that such acts are "indifferent according to their species" (STh I-II, q. 18, a. 8). He goes on, as is well-known, in the very next article to say that, nonetheless, provided they 114 KEVIN L FLANNERY, S.J. proceed from deliberative reason, such acts individual acts are not indifferent; but, even still, is not moral character a sort of accessory to the act itself? Let us look at what Thomas says in the second these articles where indifference is denied of individual acts. He explains first that the character of an act sometimes comes not from its object but from circumstances attaching to the act-and especially q. 18, a. It is this latter from the intention of the end (STh that pulls the act quam trahatur) into the realm of the moral. For since it belongs to reason to put things in order, an act proceeding from deliberative reason, if it is not ordered toward an appropriate end, has the character of evil in as much as it is incompatible with reason. But if it is ordered to an appropriate end, it is compatible with the order of reason and for that reason it has the character of good. 34 It is significant that Thomas uses here the same approach, and some the same language, that he uses in talking about the bonum [malum] in genere. As there, the good is good because it has intelligibility or fullness of being. The rational agent is judged by whether he puts-or, at least, attempts to put-things order such a way that there is a path from action to an appropriate end (ad finem ). In the event that he does so, Thomas would not say that the act "falls upon appropriate debitam materiam ), for that would make the object genere. However, besides this, the point is the same: a good act must be one whose terminus is not such as to spoil the perfection of the act. An act bad on account of this sort of contamination its natural progress (or path) would not be a "monstrosity," for the species is not impeded at its origin; but it would not fully rational, fully inte!Hgible, eithero 34 STh I-Il, q. 18, a. 9. Compare H Sent., d. 40, a. 2, where, in addition to ti'