1. A Brief Historical Survey of Natural Law Theories

Physical and Descriptive Natural Law

This is a materialistic view of Natural Law that attempts to develop a scientific analysis of and explanation for the physical laws of the universe and from these to extrapolate obligation or duty. Ethical theories as early as the Stoics Zeno and Chrysippus,¹⁸ as well as the more recent Utilitarianism, Marxism, and Social Darwinism¹⁹ fall into this category. On this view the whole universe is governed by laws that show rationality. Inanimate things obey these laws out of necessity and animate creatures obey these laws out of instinct. Since man has the ability to choose, he can obey or disobey these laws of nature. Some, like the Marxists, hold that history will inevitably go along a certain course, but man can speed the process by cooperating with the laws of history and bring us through the stage of class conflicts to freedom and justice more quickly. Natural Law in this sense is something that is rooted in the very order of the universe.

Rationalistic and Idealistic Natural Law

This is the more common form of Natural Law discussed in the literature and is generally associated with the term “Natural Law” rather than “laws of nature” or “physical laws.” The Greeks divided the world up into matter and ideas and saw in the ideas universals which right reason could discover. To them Natural Law was the discovery of universals that related to ethics.

This tradition stems back as early as Pythagoras who deduced a kind of lex talionis principle from mathematics,²⁰ and to the Greek tragedians Aeschylus and Sophocles who first taught that the positive laws of government must be judged in terms of the ethical standards of Natural Law.²¹ Socrates, in his book Apology, later tackled the problem of whether civil disobedience is justifiable when positive law violates Natural Law. Plato suggested that knowledge was a recollection of the world of forms, and believing that virtue equaled knowledge taught that it was in the best interests of the state to have philosophers govern.²² Equity for Plato was “like a link between the absolute perfection of Natural Law and the relative imperfection of human laws.”²³ Aristotle contributed syllogistic reasoning and the analytical method to ethical rationalism and in a sense “transformed [Plato’s contribution to Natural Law] into an avowedly teleological framework arguing that since man was uniquely capable of rational self-direction, personal fulfillment rested in living in accord with the dictates of reason.”²⁴ Aristotle urged orators to find equity and justice in Natural Law when positive law went against them.²⁵ Aristotle defined “equity” as “that natural justice which exists independently of human laws.”²⁶ Many look to Plato and Aristotle for principles by which to oppose the tyranny of government, but as Dr. John Frame has shown, both philosophers supported total government control in principle.²⁷

Natural Law was “one of the most characteristic and significant features of the Stoic ethics,”²⁸ and became so influential that much of their thought was incorporated into the Emperor Justinian’s codification of Roman law, which has in turn greatly influenced Western jurisprudence.²⁹ A passage often quoted from Cicero gives the gist of his Natural Law theory.

There is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong . . . It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter, and its sponsor.³⁰

Cicero outlined several general principles of Natural Law justice³¹ which could be summarized in “two fundamentals of justice: the negative that no harm be done to anyone and the affirmative that the common welfare be served.”³²

While many early Latin Church fathers were influenced by the Stoic concepts of nature and reason,³³ there were notable exceptions like Tertullian and Augustine. Augustine made clear that all order in the universe, both physical and moral, was because of God’s will. Because of his pessimistic views regarding the noetic effects of the fall, Augustine emphasized the need to see the “moral order in the light of faith and revelation rather than of reason and philosophy.”³⁴ Though there was an attempt by many church fathers to show that the Greek and Roman classical writers anticipated their ethical principles, they did not compromise the content of that law. For instance, Gratian (c. A.D. 1148) said that “mankind is ruled in two ways: namely, by Natural Law and by customs. The law of nature is that contained in the law and the Gospels.”³⁵ Natural Law for him was not independent and autonomous.

While there was little debate during the Middle Ages over the ontological existence of some sort of Natural Law,³⁶ the differences between Augustine and Aquinas which centered on the epistemological basis for perceiving Natural Law and the content of that law persist to the present day.

Aquinas divided the world into two realms: the realm of natural reason and the realm of revelation. His teaching on Natural Law can be found in his Summa Theologica.³⁷ He insisted that one does not need Scripture to make proper judgments in the ethics of Natural Law (from which we derive prudence, justice, temperance, fortitude), but we do need Scripture to make proper judgments in supernatural ethics (from which we derive faith, hope, and charity). He taught that the state (which functions in the realm of nature) and the church (which functions in the realm of grace) are each distinct and autonomous in their respective realms. In the event of a conflict between the two he thought that the church should prevail since it is of a higher sphere. Likewise, he taught that the church is best equipped to instruct the state concerning Natural Law since the church has a better understanding of nature in the post-fall world.³⁸

Aquinas was much more aggressive than previous writers in his synthesis with Greek Natural Law theories. His views of analogy made the creator/creature distinction somewhat fuzzy; like the Greek idea of participation, Aquinas said that “all beings other than God are not their own being, but are beings by participation.”³⁹ Like the Greek rational participation in the world of ideas, Aquinas said that a rational creature “shares in the eternal reason …and such participation of the rational creature in the eternal law is called Natural Law.”⁴⁰

Thomas taught that the “eternal law” by which God established all things became, when impressed upon man and his nature, a “Natural Law” (ius naturae), through which man potentially participated in his divinely ordered true end, but which in his freedom he could also choose to disobey. Because it was of the essence of things, man could perceive and logically deduce it through reason …⁴¹

For Aquinas this Natural Law is foundational to superNatural Law. As Knudson words it,

The ethic of nature was intramundane, while the ethic of grace was supramundane; but the former was introductory and preparatory to the latter. Nature was infused with reason, and through the divinely implanted reason within him the natural man was enabled to receive the divine grace.⁴²

In the ages that followed, there was some resistance in the Roman Catholic Church to the views of Aquinas. There were some Roman Catholic scholars like Scotus and Ockham who later disagreed with Aquinas saying that they saw Natural Law as an expression of the will of God rather than being the very essence of things.⁴³ The Spanish Jesuit Suarez related the beliefs of other Romanists that were even more Greek than Aquinas. He said,

These authors seem therefore logically to admit that Natural Law does not proceed from God as a law-giver, for it is not dependent on God’s will, nor does God manifest himself in it as a sovereign commanding or forbidding…[These authors teach that] even though God did not exist, or did not make use of his reason, or did not judge rightly of things, if there is in man such a dictate of right reason to guide him, it would have had the same nature of law as it now has.⁴⁴

While Paul Helm disagrees with my conclusion,⁴⁵ I believe Calvin was clearly a divine command theorist and therefore diametrically opposed to such views. God did not will the good according to what is “natural” for that would in some sense make creation the paradigm. Rather,

His [God’s] will is, and rightly ought to be, the cause of all things that are. For if it has any cause, something must precede it, to which it is as it were, bound; this is unlawful to imagine. For God’s will is so much the highest rule of righteousness that whatever he wills, by the very fact that he wills it, must be considered righteous. When, therefore, one asks why God has so done, we must reply: because he has willed it.⁴⁶

Further, Calvin clearly saw Natural Law as the revelation of God’s will in man’s heart or conscience. As Marc Cheneviere pointed out (in the words of McNeill) “Calvin’s emphasis upon conscience as the organ of Natural Law marks a sharp break from traditional expositions, in which reason holds this position.”⁴⁷ In Institutes, II.ii.22 Calvin says, “This is not a bad definition: Natural Law is that apprehension of the conscience which distinguishes between just and unjust, and which deprives men of the excuses of ignorance, while it proves them guilty by their own testimony.” He makes clear that Natural Law is not something “out there” that philosopher kings discover but is something that all men already possess since they “have been endowed with this knowledge of the law.” In another passage Calvin clearly identifies this endowment with the law of God engraved on men’s hearts. He says,

It is a fact that the Law of God which we call the moral law is nothing less than a testimony of Natural Law and of that conscience which God has engraved upon the minds of men. Consequently, the entire scheme of this equity of which we are now speaking has been prescribed in it. (IV.xx.16)

Calvin further distinguishes his notion of Natural Law from Aquinas by indicating that fallen man is not “inclined toward the good” as Aquinas would have it but is averse to the good. His commentary on Romans 2:15 indicates that he believed man’s knowledge of Natural Law did not consist in the power or the will to do good but only in the ability to distinguish “between what is proper and what is unjust, between what is honest and what is base.” Calvin does not deprecate Natural Law, but he does deprecate the moral disposition of man’s reason and will. Calvin’s skepticism about the unregenerate’s reliability in implementing natural law can be seen in his description of them as “not absolutely blind” to the law (II.ii.22). Thus though all nations do live in terms of the law of God to some extent (at least the second table of the law: See II.ii.22 and Commentary on Ephesians 6:1), even while without the witness of Scripture, Calvin would encourage magistrates to look to Scripture because the written law was given to “remove the obscurity of the law of nature” (II.viii.1). The primary function of Natural Law therefore was to restrain sin and to leave men without excuse. Calvin acknowledges that there is a similarity between the notions of justice and rectitude that the heathen have and what the Greeks spoke about, yet he in no way accepted their rationalistic theory of Natural Law.⁴⁸

A similar belief about the content and epistemological basis for natural law can be seen in the other Reformers. Though there are definitely some inconsistencies in the writings of Luther and Melanchthon, they both agreed that Natural Law was the Decalogue engraved on men’s hearts, and both agreed that the Fall of man had rendered his judgment perverted in respect to this law.⁴⁹ Calvin was perhaps the most reluctant to give a positive role to Natural Law in civic affairs,⁵⁰ but even Melanchthon, who sought more than the other Reformers to make a rationalistic formulation of Natural Law, found it necessary to disagree with Aristotle about the source of Natural Law (i.e. the law of God written on man’s conscience rather than something “out there” that is discovered)⁵¹ and to disagree with Aquinas about the effects of the fall on man’s thinking (depraved rather than just weakened).⁵²

Unfortunately, Melanchthon is inconsistent on this last point. When “he proceeds to assert the continuing existence of much of this natural knowledge of God in fallen man, he does not do so in order to fulfill the purpose of the typical Reformation theologian who would allow such knowledge only to ensure the inexcusability of man’s sinfulness. Instead Melanchthon presents the natural light struggling with errors.”⁵³ Melanchthon was attacked by Bullinger for this concession to rationalism.⁵⁴ The net result in terms of the content of Natural Law was that Melanchthon was very general in his Natural Law formulations⁵⁵ (and, as Rushdoony points out, contradicted Scriptural law at points)⁵⁶ whereas Calvin was very specific and concrete in defining Natural Laws.⁵⁷ In fairness to Melanchthon it should be pointed out that he rejected many of the Greek’s Natural Law formulations “for many of their popular ideas express the depraved affections of our nature and not laws.”⁵⁸

The Arminian writer Hugo Grotius wanted to free his thinking of even the little dependence that Melanchthon was willing to have on Scripture. He wanted a view that would be free from theological controversy (in an age of wars based on theology) so that all men could unite and agree on the principles of justice. He frees Natural Law from God to such an extent that he can say,

Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend… Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.⁵⁹

As we will see shortly, evangelical Natural Law proponents in the twentieth century find much more in common with Grotius than they do with the Reformers.

During the time of the Enlightenment there was unbounded optimism in Natural Law as an “infallible source of authority.”⁶⁰ Locke is a good example of the attitude that “it was now possible to use the laws of nature as they had been proclaimed by Newton for the purpose of determining those Natural Laws on which human society must be founded… Although the rejection of the biblical pattern for human society was implicit in these assumptions which Locke deduced from Newton, he never pushed them to their logical conclusions.”⁶¹ Locke’s Christianity kept him from throwing out the benefits of Biblical morality, but he wanted that Biblical morality to be expressed independently of the authority of Scripture.⁶² “His chief interest was the formulation of a natural theology, by which he meant a Christianity which would conform to the dictates of right reason.”⁶³

In his Of Civil Government ⁶⁴ Locke sought to make Natural Law distinct from the will of man (paragraph 4) and above the legislature as an “Eternal Rule to all Men, Legislators as well as others” (paragraph 135). In order to impress upon his readers the transcendence of this Natural Law he called it “the Will of God” (paragraph 135). Locke does not however, succeed in taking Natural Law out of the hands of men, for the principles that he deduces from it are so general (“preservation of mankind,” “seeking the public good,” “May not destroy, enslave, or designedly to impoverish the Subjects,” etc.) that a ruler can fill them with any content he desires.

Twentieth century Christian Natural Law thinkers try to make a division between Biblical law and Natural Law similar to that made by Grotius. For example Alan Johnson denies that Scripture contains all the moral principles that can be found in Natural Law.⁶⁵ Instead he says,

Jesus is repeatedly appealing to a human consensus about what sort of acts are just and unjust, a consensus not derived logically from the written revelation but resting on ideas [note the similarity to Plato’s realm of ideas] about ethics formed by reflection on man’s nature and social life - which one might conveniently refer to as some sort of NML [Natural Moral Law] thinking…His emphasis on the justice of God requires that his audience have some agreed-upon moral standards by which even God can be judged [NB that this can only happen if law is external to God].⁶⁶

J. Barton, another evangelical says in a similar vein,

Abraham is appealing to some kind of moral norm by which even God can in principle be judged; though of course the point of the argument is that in fact God never does deviate from this norm. But the very possibility of asking the question does seem to indicate that men may obtain their moral norms, not just from what God chooses to reveal, but from the perception of some ethical principle inherent in the way things are.⁶⁷

…the prophets who use the notion of poetic justice are implicitly appealing to a human consensus about what sort of acts are just and unjust, which is not logically derived from the revelation of moral norms by God, but rests on ideas about ethics formed by reason - which one might conveniently refer to as Natural Law.⁶⁸

Not all modern evangelical proponents of Natural Law (or even Roman Catholic writers for that matter) would want to make Natural Law something that is external to God’s being and something that God Himself is subject to. Many would seek to have at least a formal identity with the Decalogue, and therefore God Himself, but when it comes to setting forth the duties of the civil magistrate, every Natural Law advocate that I have read or heard has had no problem in pitting civil penology derived from Natural Law against Scriptural penology.⁶⁹ This at least gives the appearance of setting God against Himself.

Moreover, as we will see in the second part of the book, many of the Natural Law formulations of non-penological moral principles also contradict Scripture. Even the definition of “morals” in Natural Law theory becomes very fuzzy when some writers hold to a more classical view of eternal and unchangeable principles⁷⁰ (closer to Scripture) and others hold that the content of Natural Law can change as human nature changes.⁷¹

A charitable reading of evangelical Natural Law writers might give the impression that a source of morals independent of Scripture is sought because of apologetic concerns. If apologetics were the only concern, there would be no need to go beyond what Calvin did, as we will seek to show in our third section of the book. Instead, we discover an unnecessary (unnecessary from a Van Tillian perspective) divorcing of Natural Law from religion in order to present “neutral morals” to the unregenerate. Evangelicals often quote William K. Frankena⁷² approvingly to show that morality is not logically dependent upon religion. If this is apologetics, then it is an apologetics that has capitulated to the pagans and cannot show the moral bankruptcy of an ethics divorced from God.

During the time spanning the Renaissance to the modern period, there were many critical voices raised against Natural Law theories of every kind. Machiavelli was a great enemy of Natural Law, as was Hobbes a century later. Hume raised a devastating critique of Natural Law in his day. There is no lack of ammunition for a modern skeptic to throw against Natural Law theories. However, it still remains true that Natural Law theory of one form or another has been the only intellectual force that unregenerate men have had to oppose the tyranny of legal positivism. As mentioned in the introduction to this book, the judges at the Nuremberg trials had to dig into the discarded bag of Natural Law in order to be able to successfully argue that the Nazi war criminals were indeed criminals guilty of breaking a “law.” The United Nations and other agencies have also from time to time appealed to Natural Law as a last resort.⁷³ Is Natural Law the answer to tyranny or is it just a substitution of one tyranny for another?⁷⁴ The rest of this will be devoted to answering that question.