A Revival of Natural Law?

WHAT WE CAN’T NOT KNOW. A Guide. By J. Budziszewski (Ignatius Press, San Francisco, 2d ed. 2011), 291 pp.

Can we say that “natural law” is rather like the Loch Ness monster:  “Now you see it, now you don’t” ?  For many Americans, especially U. S. senators, the only time that natural law has been in contemplation range, or up for discussion, was during the hearings leading to the confirmation of Justice Thomas to the Supreme Court in 1991—an unenlightening episode.  It may well be that as America declines, intellectually and otherwise, names such as Aristotle, Aquinas and Locke will vanish from college curricula and from public discourse.  Nevertheless, some authorities, such as Professor Budziszewski, actually perceive a surge, one might say, of interest, at least in academic circles, in natural law.  Heinrich Rommen wrote in 1936 of the “perpetual recurrence” of natural law;  Robert George wrote in 1991 of a revival of interest in natural law theory; and even a Canadian talk show host asked in 2005 whether natural law had become “respectable” again.  We should note as well the recent issuance of a paper from the International Theological Commission (“The Search for Universal Ethics: A New Look at Natural Law” (Dec. 2008)).     “[W]e are hearing from natural lawyers again,” as  Budziszewski puts it.

Without presenting the permutations of natural law thinking over the millennia, for which there are scholarly materials extant (including the author’s “Written on the Heart: The Case for Natural Law” (1998)), Budziszewski sees natural law tradition as now moving to a fourth phase—the earlier phases having belonged to the philosophers (i.e., Greeks and Romans), to the theologians (culminating in Aquinas), and to the soi-disant Enlightenment (now at its “fag end,” as Jesuit writer, Francis Canavan, put it).  The “nascent fourth phase” arises, in his view, in the collapse of the Enlightenment notion of an ethics both universal and neutral.  Rather than a flabby neutrality, he asks whether there is not a common ground, since there is a single human nature.  This is a good question, well put, because some critics of natural law thinking have argued that it is entirely dependent on Revelation.  As the author clarifies, natural law and Revelation illuminate each other, having both come from the same Lawmaker.  He goes on to argue that there are four different ways, or witnesses, in which, or to which, “what we can’t not know” are indeed known:  the witness of deep conscience, the witness of design as such, the witness of our own design, and the witness of natural consequences.  These are elaborated upon in Chapters 4 and 5.

A unique part of this book to which skeptical students can relate is at Chapter 6, “Some Objections,” where the author-professor poses and responds to a series of questions, informally, even slang-ily, and, sometimes, too briefly.   This dialogue, presumably imaginary, must emerge from classroom experiences, leading off with a question, followed by a hundred or so more, as to whether natural law comes from God, nature, conscience or reason.

Rather timely, incidentally, is the author’s reference to Islam—“and not only because of the doctrine of jihad,” as he puts it.  He notes that during the Middle Ages, Muslim thinkers were more favorable to natural law than today.  One assumes that he is referring here to philosophers such as Avicenna and Averroes, whose writings are said to have sharpened Aquinas’ philosophy, even as he refuted them.  Perhaps, this comment will become the subject for Budziszewski’s next book.

The title of this book, with its double negative, could be seen as off-putting.  His purpose becomes clearer in the discussions on knowledge and conscience, and, for biblical believers, we are refreshed by the term, “written on the heart” (Rom. 2:15; Jer. 31:33).

For readers who do look at footnotes, especially in a book of this type, it would have been helpful (albeit editorially tedious) to place the references, at least, at the end of the respective chapters, if not on the pages with the text, rather than buried in the back of the book.  This book is, indeed, a valuable contribution as discussion of natural law surfaces again, we pray, from the dark waters of modern day positivism.  Natural law being at the vortex of law, sociology, philosophy, and theology, it will be of interest to lawyers, judges, clerics, and academics.


Charles Molineaux, J.D.

McLean, Virginia

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