The Thomist 73 (2009): 169-239 CONSCIENCE, FREEDOM, RIGHTS: IDOLS OF THE ENLIGHTENMENT RELIGION JOHN R. T. LAMONT Catholic Institute of Sydney Strathfield, NSW, Australia T HE UNDERLYING THEME of this article is the teaching of the Catholic Church on religious liberty. In order to address this much-contested subject one must first consider other subjects that are at least as important: the concepts of conscience, freedom, and rights. In this article, I will contrast St. Thomas's understanding of these concepts with the understandings of the Counter-Reformation and the Enlightenment, and will argue that St. Thomas's understanding is the one that should be adopted. In addition to providing a necessary preliminary to an examination of Catholic teaching on religious liberty, this discussion will put us in a position to understand the state of the Church as a whole, and the crisis she has been undergoing not simply since the Second Vatican Council, but since the Enlightenment. Examination of these concepts will have to be carried out at some length. This is because I will be arguing for theses in the line of the nouvelle theologie, claiming that the nominalist and Counter-Reformation understandings of these concepts are wrong and damaging, and that St. Thomas's understanding of them should be accepted instead. Because St. Thomas's views on these subjects are still often misunderstood, and the opposing views remain well entrenched, the arguments for St. Thomas's position need to be substantial. 169 170 JOHN R. T. LAMONT I. CONSCIENCE VS. PRUDENCE A) Conscience in St. Thomas Discussions of conscience usually proceed on the assumption that its basic features are known and not controverted, or at least not controverted by morally decent and sincere people. Frequent rhetorical appeals to the rights of conscience and the inviolability of conscience rest on this assumption. In fact, however, this assumption is mistaken. The understanding of conscience to which such rhetoric appeals is not an evident notion that arises from universal human experience, but is rather the product of a particular philosophical and theological development. This development, together with the notion of human freedom with which it is connected, began to be elaborated in the Middle Ages, and was brought to completion by the theologians of the CounterReformation. It is radically different from the notion of conscience held by St. Thomas, and the understanding of freedom that it involves is radically different from St. Thomas's understanding of freedom. To attain the degree of clarity that we require about St. Thomas's understanding and the CounterReformation understanding, it will be necessary to put them in the contexts of the accounts of human action of which they are parts. This is particularly necessary in St. Thomas's case, in order to remove the layers of misinterpretation that have been imposed on his views by commentators trying to force his thought into the mold of Counter-Reformation moral theology. Conscience, according to St. Thomas, is not a power or a habitus, but an act (STh I, q. 79, a. 13; De Verit., q. 17, a. 1}; it is the act of making a speculative judgment about the goodness or badness of a particular act of the will. The making of this speculative judgment need not occur in the course of deliberating about whether or not to do the act to which the judgment applies; it can be made about actions in the past. This understanding of conscience is at odds with the notions that conscience is an CONSCIENCE, FREEDOM, RIGHTS 171 authority, is "the most immediate giver of moral imperatives," 1 or is the proximate rule of human acts, with the divine law being the remote rule. 2 The act of making a judgment of conscience does not as such give rise to moral permission or a moral imperative to act, nor does it contain the power to motivate an action. It is the reasons assented to in the judgment that perform these functions, rather than the act of making the judgment. As Herbert McCabe says, "it is not the strength and sincerity of my conviction that the use of nuclear weapons must always be evil, but rather the grounds for this conviction, that make it morally right for me to refuse cooperation with any such use. " 3 On St. Thomas's view there is nothing that makes a judgment of conscience closer to an action than the divine law. It is misleading to think of conscience in his sense as authoritative or imperative, because the basic act of conscience is a passive one, in the sense that all judgments about reality are passive: they are formed in response to reasons and evidence. Moreover, when the content of a judgment of conscience is known to be true, it is misleading to speak of the reasons contained in such a judgment being the motivation for action, rather than the realities this judgment is about being the motivation. Saint Thomas holds that our knowledge of propositions does not stop short at the propositions known, but attains the realities themselves that the propositions are about. For such judgments, it is thus the good itself that is known that ultimately motivates action. This passivity exists even in the case of an erroneous judgment of conscience. Saint Thomas holds that such a judgment must be obeyed, but this is not (contrary to what many of his interpreters say) simply because there is something about conscience as such that demands obedience. It is instead because built in to the notion of making a judgment of conscience-whether erroneous or not-is the fact that the person believes something about the act being judged that makes it a good or bad act, even if the belief 1 Karl Rahner, "The Appeal to Conscience," in idem, Nature and Grace, trans. Dinah Wharton (New York: Sheed & Ward, 1964), 49. 2 St. Alphonsus Liguori, Theologia Moralis, new ed. (Lyon, 1829), lib. 1, tract. 1, p. 2. 3 Herbert McCabe, "Aquinas and Good Sense," New Blackfriars 67 (1986): 421-22. 172 JOHN R. T. LAMONT is something as general as "this act is commanded by God." It is this reason, as believed to be true, that confers authority on the judgment of an erroneous conscience. Ascribing moral authority to the judgment of conscience as such is like giving the act of calculating the answer to a statistical problem a probabilistic value in itself, which raises the probability of the conclusion arrived at in the calculation beyond the probability conferred on the conclusion by the other evidence that the act of calculation takes into account. Because there are no limits in principle to the kinds of knowledge that may be needed to establish that particular actions are good or bad-a doctor will need scientific knowledge, a civil engineer will need mathematical knowledge, and so onconscience in St. Thomas's sense is not the product of any particular cognitive power. This was denied by some later theologians, who distinguished between actual conscience-conscience as St. Thomas defines it-and habitual conscience, which they conceived of as the power to form judgments of conscience. They situated this habitual conscience in St. Thomas's system by identifying it with his notion of synderesis. 4 This glaring misinterpretation is an interesting example of the force of preconceived ideas. 5 Saint Thomas makes it clear that synderesis is the grasp of the first principles of practical reason.6 This identification is explicitly made by Philippe Delhaye, who speaks of "habitual conscience or synderesis" (P. Delhaye, La conscience morale du chretien [Tournai: Desclee, 1964], 96). A similar identification is made in M. Zalba, Theologiae Moralis Compendium I (Madrid: Biblioteca de Autories Cristianos, 1958), 356. 5 It should be acknowledged that the identification of the principles grasped by synderesis with moral principles is suggested by St. Jerome's account of the term in his commentary on Ezekiel (translated in Timothy C. Potts, Conscience in medieval philosophy [Cambridge: Cambridge Univeresity Press, 1980], 79-80) and by the account in Peter Lombard (see ibid., 93), and is explicitly advanced by Philip the Chancellor (ibid., 100), St. Bonaventure (ibid., 116), Albert the Great (see Eric D' Arey, Conscience and Its Right to Freedom [London: Sheed and Ward, 1961], 31-33), and others. This fact makes St. Thomas's departure from this consensus a striking innovation. 6 See STh I, q. 79, a. 12. Although the accounts of practical reason given by Germain Grisez and John Finnis differ radically from that of St. Thomas, they do underline that the first principles of practical reason in St. Thomas are not moral principles. This was a fundamental advance. 4 CONSCIENCE, FREEDOM, RIGHTS 173 These principles are made up of the very first principle of practical reason, which is that good is to be done and evil to be avoided (STh 1-11, q. 94, a. 2), and the principles that specify basic goods to which humans have a natural inclination, such as life, reproduction, knowledge, and social existence (cf. ibid.). But these principles are not only the principles of right action, or even of action that is believed (whether innocently or culpably) to be right, but of all rational action whatsoever, whether or not it is good or approved by the judgment of conscience. That is what it means to say that they are the first principles of practical reason. What makes them the principles of all rational action is that all such action is motivated by the good as understood by the reason ("omne enim agens agit propter finem, qui habet ratione bani"). 7 The subsidiary principles of synderesis specify in a basic way what the forms of good for humans are, and the first principle conveys what good as such is. Without a grasp of these principles, there could be no rational action. The subsidiary principles determine what morally bad actions are, because such actions are simply actions that are not good in every respect, and the principles determine what it is to be a good human action. These principles are not proscriptions of such actions. This explains why St. Thomas holds that no one errs concerning these subsidiary principles (STh I, q. 79, a. 12, ad 3). If these principles were basic moral principles like "do not steal," "do not murder," and so on, it would be obviously false to claim that no one disbelieves them. But in St. Thomas's conception, a person who fails to grasp one of the subsidiary principles would not be a person who would fail to understand that acts that violate the good referred to in them would be wrong. He would be a person who could not do an act that is motivated by the good referred to in that principle-whether it be life, or reproduction, or social existence-because he would not understand that these features of human life are worth pursuing. The inability to grasp any of these basic forms of good as motivations for action would make someone irrational, and it is thus true that any rational 7 STh I-II, q. 94, a. 2 (Madrid ed., 610). 174 JOHN R. T. LAMONT person will grasp these principles. (This grasp, because it is a feature of practical rather than theoretical reason, need not involve philosophical acceptance of these principles as principles of action-Kant and Mill were not practically irrational as a result of holding views on action and morality that were incompatible with St. Thomas's account of synderesis. But it does require the ability to act in pursuit of these goods as such.) The idea that synderesis in St. Thomas can be equated with habitual conscience is an erroneous assimilation of his views to the position of later theologians-to the position of moralities of conscience, a school of thought that is more fully discussed below. One mistake in this assimilation is the one just noted, that of holding that only morally good actions can be motivated by the principles grasped by synderesis. This mistake necessarily follows from a further one, which is a wrong understanding of what St. Thomas conceives these principles to be. In moralities of conscience, the principles grasped by synderesis are understood in a way that conforms to the definition of synderesis as "habitual conscience." They possess two features that distinguish them from these principles as St. Thomas understands them: they have imperative force, and the fact that an action is done out of obedience to them makes that action morally good. For St. Thomas, however, it is only the very first principle of practical reason-"good is to be done and evil is to be avoided"that moves the will, because it is this principle that commands the pursuit of the ultimate end of man, which is in turn the motive for all rational action (cf. STh 1-11, q. 1, aa. 3 and 6). All other goods are sought for the sake of the ultimate end, which is specified by the goal of human nature as such. This notion can be illustrated by an analogy with a car. It might be good for a car of a given make to operate at between 1500 and 4500 rpms. This way of operating will, however, only be good on account of the ultimate end of the car. If the car had a different end, such as emitting a certain amount of heat or producing a certain amount of C0 2, it could be the case that only operating above 4500 rpms would be good. Without the end of the car being given, it is impossible to CONSCIENCE, FREEDOM, RIGHTS 175 say whether or not such operation would be good. The same applies for the goods grasped by synderesis, in St. Thomas's understanding. Since the ultimate end is the criterion for good action, the fact that an action is motivated by one of the particular goods grasped by synderesis cannot suffice to make it a good action. A good action is one that pursues the particular good in such a way as to attain the ultimate good. This requirement to reach the ultimate good, a good not referred to by the principles grasped by synderesis, means that these principles cannot function as imperatives, obedience to which makes an action good as such. A further misinterpretation of St. Thomas's account of conscience lies in the way it has been connected to prudence. Later members of the Thomist school, beginning with Billuart, 8 described true judgments of conscience as being acts of the virtue of prudence. Identifying the error in this position is very helpful in illuminating St. Thomas's account of conscience. Billuart confines acts of prudence to true judgments of conscience because he is aware that prudence, being a virtue, only produces good acts. He wrongly identifies such true judgments with exercises of prudence, because he fails to understand that prudence-as St. Thomas understands it-is a virtue that is exercised in acts. Prudence is what supplies the intellectual component of good actions (cf. STh 11-11, q. 47, a. 8). The assent to a true judgment of conscience will form a component of an exercise of prudence, but it cannot itself be an exercise of prudence, because an exercise of that virtue goes all the way through to the act. One can make a true judgment of conscience without acting upon it, and a person who does not act well is not prudent, even if all his beliefs about how he should act are true. 8 "An upright conscience coincides with the act of prudence that is termed judgment" ("Conscientia tamen recta coincidit cum actu prudentiae qui dicitur judicium"; Charles Billuart, Summa Sancti Thomae, vol. N, new ed. [Paris: Meillier Freres, 1828], 187). I owe this observation to M.-M. Labourdette's lecture notes on the Summa, Cours de theologie morale: Les actes humains, 2a2ae, 6-48 (Toulouse, 1959-60); see esp. p. 150. The discussion of conscience and prudence in this paper is largely based on these notes. I have not been able to obtain the revised version of this course published by Parole et Silence in 1999, and have used the original notes. 176 JOHN R. T. LAMONT But a true judgment of conscience is not an act, and need not be acted upon. Saint Thomas's conception of prudence and conscience explains why he gives an extensive discussion of prudence, but no discussion of formation of conscience, and not much discussion of conscience itself. According to St. Thomas's understanding of prudence, identifying the formation of conscience as the way to moral improvement is a mistake, if such formation is understood as first an attempt to improve one's capacity for arriving at true speculative judgments about the rightness or wrongness of actions, in order then to be able to act upon this improved knowledge. On St. Thomas's view, this will not work. The natural way to get better at knowing what it is good to do is principally by doing what is good (the qualifier "natural" here is meant to take into account the possibility of divine grace producing knowledge of what it is good to do). One can acquire knowledge about the goodness or badness of actions through speculative investigation rather than through practice, but only in a subsidiary and introductory way. Such speculative investigation will primarily yield information about kinds of action that are intrinsically wrong, and the learning of such information belongs to the first stages of moral development. Apart from such intrinsically wrong actions, the goodness or badness of most actions cannot be deduced from an easily accessible description of them. It is part of the task of prudence to discern the relevant descriptions under which actions should be evaluated; and the capacity to make this discernment is developed through developing one's prudence, which is done through doing good acts. It is thus prudence, rather than conscience, that plays the central role in moral discernment for St. Thomas. The notion of formation of conscience not only obscures the central role of good action in developing one's power to form true judgments of conscience, but also conveys a mistakenly individualistic picture of how this power is developed. The chief way in which prudence is developed is not by reasoning out moral judgments on one's own-"forming one's conscience"-and then CONSCIENCE, FREEDOM, RIGHTS 177 acting on them, but by accepting moral principles on trust from the persons charged with one's education, and then learning the truth of these principles for one's self by acting on them. This is indeed the kind of way one acquires practical skills in general. It applies not only to the overarching virtue of prudence, but to subsidiary practical skills such as those of a doctor, a lawyer, or an airplane pilot. B) Moralities of Conscience Counter-Reformation moral theologies are what Michel Labourdette disparagingly calls "moralities of conscience." The central role of conscience rather than prudence in these theologies emerges from an overall structure that is radically different from that of the theology of St. Thomas (one should not say "from the moral theology" of St. Thomas, because the very term and concept of "moral theology" belongs to moralities of conscience, not to St. Thomas's thought). Servais Pinckaers has rightly identified the notion of liberty of indifference as the fundamental source of the divergence between St. Thomas and CounterReformation thought. 9 Originally inherited from nominalists and Scotists, and preserved from criticism in part because of its perceived usefulness in combating Protestants and Jansenists, 10 the notion of liberty of indifference is defined by its rejection of St. Thomas's claim that there is something the will wills of necessity, and by its assertion that freedom consists purely in the power to choose between alternatives. Pinckaers's term for St. Thomas's conception of liberty, "liberte de qualite," has been rather uninspiringly translated as "freedom for excellence," which sounds like the motto for an earnest service club--and misleadingly suggests that such freedom is directed especially towards excellence, rather than to any 9 See Servais Pinckaers, Ce qu'on ne peut jamais faire (Paris: Editions du Cerf, 1986), 4346; and idem, Les sources de la morale chretienne, 2d ed. (Paris: Editions du Cerf, 1990), chap. 10, esp. pp. 259-61. 10 On liberty of indifference as a weapon against Jansenism, see Pinckaers on Billuart, in Pinckaers, Les sources, 357-58. 178 JOHN R. T. LAMONT goodness whatsoever. The term that will be used for this conception here is "teleological liberty." This term is intended to signify that all voluntary action, according to St. Thomas, is done for the sake of some good that is understood by the intellect as good; that the ultimate good sought is happiness; and that happiness is determined by human nature, whose teleology specifies the goal of human beings as such, achievement of which goal constitutes happiness. Possession of teleological liberty is a result of the possession of intellect and will, and its exercise is an exercise of those faculties. The source of moral obligation, on this view, is the fact that some actions are not good in every respect, and hence ought not to be done; it is not that they lack some specific kind of goodness that can be called "moral goodness." The source of the capacity to sin is the fact that actions, although seen as evil when adequately considered, can nonetheless fall under more general descriptions that refer to good sorts of action, and hence can motivate the will to pursue them. Freedom to choose between alternatives arises from the fact that more than one possible action can be good in some respect. Hence, the blessed in heaven, who, because of their direct apprehension of the divine essence, are unable to conceive of sin as good, are unable to choose to sin; but this is not a limitation on their freedom. The law of nature that specifies the goodness of the will is given by the goods to which human teleology is directed. This law, whose basic features are grasped in synderesis, does not specify kinds of good action, but features of reality that human actions are to realize, features that provide the measure by which to evaluate actions. A law is nothing other than a certain plan and rule of acting ("lex nihil aliud sit quam quaedam ratio et regula operandi"). 11 If liberty is conceived of as liberty of indifference, however, this conception of the ultimate motivation for human action has to be abandoned, because liberty of indifference must retain the power to reject any good at all presented to it by the intellect. The 11 ScG III, c. 114 (St. Thomas Aquinas, Summa contra Gentiles [Rome: Leonine Commission, 1934], 366). CONSCIENCE, FREEDOM, RIGHTS 179 notion of such a power is incompatible with St. Thomas's very first principle of practical reason. It also denies the teleology of human nature, as St. Thomas understands it. For him, this teleology consists in the fact that voluntary action, and the human will itself, it directed towards the good as understood by the reason. If this direction does not exist, the end of man, as he conceives it, is removed. Liberty of indifference thus removes the basis of his account of the nature of the human good, of practical reason in general, and of good action. A replacement for this basis is required for the purpose of moral theology, and it is furnished by the notion of the command of a superior as the ultimate motivation for doing what is good. For Ockham, the content of what is good is furnished by the divine command, as well as the obligation to do it. 12 For Suarez-a characteristic representative of Counter-Reformation theology, as the official theologian of the Society of Jesus-the content of what is good is given by the nature of things, and this goodness can provide a motivation for action. It cannot, however, make an action obligatory, and thus cannot furnish a basis for morality and for law. The command of God adds the extra ingredient needed to achieve this. Law, in the mind of the legislator, consists in a just and right act of will by which a superior wills to oblige an inferior to do this or that thing ("addo ... legem mentalem [ut sic dicam] in ipso legislatore esse actum voluntatis justae et rectae, quo superior vult inferiorem obligare ad hoc vel illud faciendum") 13 In order for this act to apply to the inferior it must be promulgated, but this happens, in the case of the natural law, through rational beings inferring that God, as perfectly good, wills that the natural good be done by us (De Legibus, bk. 2, ch. 6, para. 8). In St. Thomas, by contrast, it is the 12 This account of Ockham's views is contested-see Thomas M. Osborne, "William of Ockham as a Divine Command Theorist," Religious Studies 41 (2005): 1-22, for a description of this debate-but it will be accepted here, as providing one of the main theoretical possibilities for describing how the divine command determines moral obligation. 13 Suarez, De Legibus, bk. 1, ch. 5, para. 24, in Franciscus Suarez, S. ]., Opera Omnia, vol. 5 (Paris: Vives, 1851), 22. This definition, radically different from the definition of law given by St. Thomas and cited above, is repeated in substance as late as the manual of Zalba, Theologiae Moralis Compendium I (1958), 173. 180 JOHN R. T. LAMONT grasp of the first principles of practical reason itself, rather than any inference to conclusions about God's will for us, that constitutes the promulgation of the law of nature (STh 1-11, q. 90, a. 4, ad 1). Suarez, in proposing a morality of obligation rather than a morality of virtue, was characteristic of a general outlook that had become common in the Middle Ages, and later became universal. Elements and causes of this outlook were the replacement of the virtues by the Ten Commandments as the basis of moral catechesis, the revival of Roman law in the Middle Ages, and the power and influence of canonists; St. Thomas in fact stood out against this movement, which was already strong in his day.14 The idea that the law of nature consists in commands is a reversal of St. Thomas's idea. The law of nature for St. Thomas works from the inside; the will moves towards the ultimate end, via the particular goods that participate in it. For Suarez, the force of the law of nature comes from the outside: the divine command replaces the first principle of practical reasoning as the ultimate source of obligation, and gives an imperative force to the law. Because this law has to govern individual actions, its imperative force has to reach all the way to commands, prohibitions, and permissions of specific actions, these being the categories of imperative that Suarez assigns to the law (De Legibus, bk. 1, ch. 15). Because it is impractical to have a distinct divine command for every possible situation, the description of the kinds of action that are commanded, prohibited, or permitted is always rather general. Their application to particular cases is thus not straightforward. This is where conscience enters into the picture. Conscience, in the conception of Suarez and of other moralists of conscience, is the intermediary between divine commands and particular actions. Conscience is an active power-it has the task of discerning how the application of a command to a particular action is to be done. Since it is only by conscience that the divine 14 On this see Thomas Gilby, "Appendix 1; Prudence and Laws," in St. Thomas Aquinas, Summa Theologiae, vol. 36 (2a2ae 47-56) (London: Eyre & Spottiswoode, 1974). CONSCIENCE, FREEDOM, RIGHTS 181 commands are applied to action, conscience becomes an authority. It is not simply the reasons upon which conscience judges that have authority; conscience inevitably possesses an authority of its own, since it carries out the selection and evaluation of reasons for judging an action. In this capacity, conscience becomes central to Counter-Reformation moral theology-in contrast to its very minor role in St. Thomas. C) Conscience as Authority This notion of conscience as an authority gives rise to a crucial difference between St. Thomas's notion of conscience and that of Counter-Reformation theologies. For St. Thomas, and for moralities of conscience, an erring conscience binds; if one falsely believes that a given act is good or bad, one is morally required to act in accordance with that false belief. An erring conscience does not necessarily excuse, however; if one's false belief is the result of previous bad actions, acting in accordance with it remains a sin. Only when a mistaken judgment of conscience is arrived at inculpably is acting in accordance with it not sinful. Thus far, St. Thomas and moralities of conscience agree. Where they disagree is over the question whether an action that follows an inculpably erring judgment of conscience is a good action or not. Saint Thomas denies that such actions are good. He asserts that the ignorance in question removes the character of voluntariness from the act, thus making it neither good nor bad (STh I-II, q. 19, aa. 5-6; see also De Verit., q. 17, a. 4). For moralities of conscience, however, an action done in accord with an inculpably ignorant judgment of conscience is not only not sinful, but good. 15 Such an action is put on the same moral level as an action based on a judgment that is actually true. This follows from the conception of conscience as an authority, and of good action as consisting in obedience to that authority. 15 This is stated in Suarez, De bonitate et militia humanorum actum, ]). 77 See, e.g., Villey's review of Richard Tuck's Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), in "Travaux recents sur !es droits de l'homme, I," Archives de philosophe du droit 26 (1981): 411-18. 220 JOHN R. T. LAMONT Villey points out, objective right is a real feature of the world, which inevitably obtrudes itself into daily life and legal decisions. Accounts of natural subjective rights, together with positive legislation, are in practice insufficient for juridical purposes. 78 The real activity of judges, when investigated, turns out to involve acknowledgment of the existence of objective right. An account of justice and law with no place for objective right therefore needs an understanding of the world that can motivate people to deny the existence of objective right, and to reject or reinterpret the judicial activity that depends on the existence of objective right. Ockham's nominalist ontology performs this essential function for a theory of subjective rights. F) Full Development of Subjective Rights Villey's account of the origin of philosophical accounts of subjective rights thus stands up to examination. Although he identifies Ockham as the originator of subjective rights, he holds that the full-fledged subjective rights position took time to develop. An important step in that development was the baroque Scholastic account of ius as a power rather than a relation, 79 but the final steps were taken by Hobbes. These steps were the definition of subjective rights as natural rights and the elaboration of a conception of the nature of individuals and human society that would replace the Aristotelian conception that underlies objective right. Hobbes offers this definition of right: The right of nature, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto .... Right, consisteth in liberty to do, or to forbear; whereas law, See, e.g., Michel Villey, Reflexions sur la philosophie et le droit: Les carnets de Michel Villey, ed. Marie-Anne Frison-Roche and Christophe Jamin (Paris: PUF, 1995), 305. 79 For ius as a power in Vitoria and Suarez, see Villey, La fonnation de la pensee juridique moderne, 344-45, 356-57. 78 CONSCIENCE, FREEDOM, RIGHTS 221 determineth, and bindeth to one of them: so that law, and right, differ as much as obligation, and liberty; which in one and the same matter are inconsistent. 80 Inspired by the scientific practice of the day, 81 Hobbes attempted to describe the properties of human societies as functions of the properties of the individuals that compose them. This is the rationale for the hypothesis (or perhaps merely the thought experiment) of the state of nature, a state where the attributes of individuals who are joined by no social bonds can be considered. These attributes then serve as the basis for the construction of all social bonds, much as the electron shells of atoms serve as the basis for the construction of all molecules. This conception of the nature of society is fundamentally opposed to that of Aristotle and St. Thomas, and rules out the possibility of objective right. The only attributes of individuals in a state of nature are those that flow from the bare human nature found in each one of them, since every historical circumstance or personal relation has been thought away. Political structures are derived from these attributes from the drive to self-preservation, together with the law of nature that requires individuals to keep their promises. This gives rise to a situation in which the rights possessed in the state of nature are ceded by contract to the ruler, in order to achieve the goal of self-preservation for individuals. Since these rights are absolute spheres of freedom in which to act, they confer absolute power on the ruler when transferred to him. The ruler becomes, for Hobbes, a "mortal God" upon which his subjects can make no claim. This absolutism, favored by Hobbes partly as a result of his experiences of the English Civil War, did not go down well in England. The flexibility of the notion of subjective right was demonstrated by Locke's use of it to limit the powers of the ruler, through the simple expedient of postulating more subjective rights in the state of nature than Hobbes's solitary right to selfp. I, c. 14, in The English Works of Thomas Hobbes, vol. 3, ed. Sir William Molesworth (London: John Bohn, 1839; repr. Darmstadt: Scientia Verlag Aalen, 1966), 116-17. 81 Villey, La formation de la pensee juridique modeme, 574-75. 80 Thomas Hobbes, Leviathan, 222 JOHN R. T. LAMONT preservation. This expedient, together with the postulation of a more comprehensive law of nature that binds men in the state of nature, transformed the state of nature from a misery to be escaped into the foundation upon which society is built. The principal additional natural right postulated by Locke is that of property (Two Treatises on Government, b. 2, c. 5). The natural law commands us to respect the natural rights of others. Because they are natural, these rights are absolute, and cannot be infringed on by the state against the will of their possessors. The powers of the state are those natural rights that have supposedly been ceded to it by the free consent of its citizens. The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property ... . in the state of nature, to omit the liberty he has of innocent delights, a man has two powers. The first is to do whatsoever he thinks fit for the preservation of himself and others within the permission of the law of nature .... the other power a man has in the state of nature, is the power to punish the crimes committed against that law. Both these he gives up when he joins in a ... particular politic society .... the first power ... he gives up to be regulated by laws made by the society .... the power of punishing he wholly gives up. 82 The obligation to keep one's promises is also a part of the natural law, thus giving a moral basis to the power of the state. The result of this social contract is a night-watchman state, with no authority over religious belief (which is taken to be a purely private matter), no authority to punish immoral behavior as such, and no authority to suppress the free expression of opinion, except in so far as any of these things violate the rights of others or the public peace (these positions are all developed by Locke in A Letter concerning Toleration). Its function is to protect individual rights against internal and external aggressors-a function that emphatically cannot include any kind of redistribution of property, which would be an infringement on natural rights. Locke's political philosophy is the theoretical rationale, and a 82 John Locke, Two Treatises of Government, book 2, Essay on Civil Government, c. 9, in The Works of John Locke, vol. 5 (London: Thomas Tegg, 1823; repr. Germany: Scientia Verlag Aalen, 1963), 412-14. CONSCIENCE, FREEDOM, RIGHTS 223 historical cause, for the "Anglo-American" conception of the religiously neutral state, which is often favorably contrasted by Catholic thinkers with the more determinedly secular understanding of the state that emerged from the French Revolution. Villey's account of the development and eventual supremacy of the concept of subjective rights is not limited to the ideas of philosophers. It also contains descriptions of the important contribution of jurists. The baroque Scholastics, especially Suarez, fell to some extent into both these categories (and had an underestimated influence on the development of legal thought), but in the seventeenth century the work of men whose scholarly activity was concerned primarily with the law began to play an important role in this process. The chief figure in this development was Grotius. Villey points out that the innovation usually credited to him, that of separating law from religious belief, was not in fact novel. It is a basic feature of the thought of St. Thomas on ius, grounded as it is on the pagan Aristotle; and Grotius's formula of the natural law obtaining even if it is assumed that God does not exist ("etiamsi daremus ... non esse Deum") is in fact found in substance in a number of Scholastics. 83 Nor was Grotius's definition of rights as subjective rights a novelty. Villey identifies Grotius's originality as consisting in his attempt to base the law on principles of morality. Grotius's ambition was to found the law on a rational basis that was as independent of empirical facts as the work of mathematicians. 84 He sought to achieve this by merging law with morality-"law is a rule of moral actions obliging one to do what is right" ("ius est ... regula actuum moralium obligans ad id quod rectum est") 85-and basing law on the first principles of morality inscribed in the human conscience. These principles are founded on the inclination to live in human society, and are taken from Stoic morality as passed on by Cicero. They are the 83 Villey, La fonnation de la pensee juridique modeme, 539; he instances Suarez, De legibus, bk. 2, ch. 6, para. 17; Vasquez, Commentari ac disputationes in Primam Secundae S. Thomae (Lyons, 1631),