Cicero, Aquinas, and Contemporary Issues in Natural Law Theory

THE ADVENT OF THE "NEW NATURAL LAW" THEORY in the latter half of the twentieth century has had the welcome effect of inviting St. Thomas into discussion with contemporary moral, legal, and political philosophy. With Finnis's seminal work, a broadly Thomistic natural law was rendered not only compatible with contemporary analytic philosophy and jurisprudence, but foundational with respect to the natural rights that define the liberal tradition. (1) The impact of Finnis's ambitious synthesis of characteristically modern insights with Thomistic natural law, while it has proceeded in connection with a larger movement within post-Vatican II Catholicism, has become increasingly relevant to purely secular debates within contemporary liberalism. This impact may be clearly seen in a recent attempt to construct a "natural law liberalism" which promises to include the core ideas of each tradition within a single, coherent political philosophy. (2) Amidst the fervor in some scholarly circles to render Thomistic natural law theory relevant to a contemporary context imbued with the doctrines of liberalism and guided by the demands of analytical rigor, however, this natural law theory has itself been largely uprooted from its classical foundation. This uprooting is significant primarily because Thomistic natural law theory becomes more, rather than less, persuasive when it is viewed in light of its classical foundation. In spite of this, the interpretation of St. Thomas's so-called "Treatise on Law" (and conscious departures from it) by the new natural law theorists largely presupposes the absence of such a foundation. (3) This presupposition is, moreover, not unfounded. The two most obvious candidates for a foundational role in Thomistic natural law from classical antiquity, Aristotle and Cicero, have been widely pronounced unfit for the task. The term "natural law" is entirely absent from Aristotle's works, and the very notion appears to be largely alien to his thought. (4) Although references to the "natural law" abound in Cicero's works, this natural law appears to be little more than a transmission of Stoic ideas; (5) and while St. Thomas's natural law doctrine may indeed have Stoic resonances, the cosmology which grounds the Stoic natural law was clearly superseded in St. Thomas's work by Christian doctrines. From these considerations it would appear that St. Thomas's natural law is less the culmination of a preceding tradition than the prototype of an entirely new natural law doctrine centered upon the famous theory of the "inclinations." (6) The failure to locate significant preChristian influences on St. Thomas's natural law has, moreover, lent substantial support to antinatural law arguments. The question posed by Strauss in Natural Right and History accurately encapsulates the starting-point for such arguments: "one would be forced to wonder ... whether the natural law as Thomas Aquinas understands it is natural law strictly speaking, that is, a law knowable to the unassisted human mind, to the human mind which is not illumined by divine revelation." (7) If Thomistic natural law is coextensive with Christian belief, it is difficult to avoid answering this question in the negative. Finnis himself is irresistibly led to this conclusion by presenting a theory of natural law independent of "the question of God's existence or nature or will;" (8) without this reference to God, the natural law is "only analogically law." (9) From this verdict, it seems that the debate between contemporary defenders and opponents of natural law theory is in fact characterized by fundamental agreement. The question of "whether the natural law exists" has been widely closed; it is now asked "whether something natural law-like exists," "whether there is a natural and objective standard for human action," (10) or even "whether certain ideas associated with the natural law may be beneficial or useful in a contemporary liberal context. …