Subversive Natural Law

We usually think of tradition as a source of authority or auctoritas. The “traditional” society is a byword for pre-critical social hierarchies. Alasdair MacIntyre, however, is interested in drilling down into a subversive substrate of tradition — one strangled in the crib by the nascent nation-state.

One of my favorite articles by Alasdair MacIntyre is “Natural Law as Subversive” (1995), collected in his second essay collection Ethics and Politics. MacIntyre presents Thomas Aquinas as an early enemy of the centralization of power and authority in thirteenth century Europe. Thomas’s theory of the law is opposed in the article to the lawmaking practices of Emperor Frederick II and (Saint) Louis IX, the king of France. The opposition is useful for understanding MacIntyre’s project of anti-statist Thomism:

Louis IX appealed to theological, indeed to specifically Christian, premises to support his legal and administrative conclusions. Aquinas appealed to natural reason, not only for his account of the purpose and function of the law, but also for the standard to which all positive legal enactments and administrative measures must conform, if they are to be appropriate law rather than merely an expression of the will and interest of those who enact and administer… That human law is from natural reason has radical implications. (47)

Carl Schmitt’s political theology hearkens back to this medieval age where kings had auctoritas and built up state power. MacIntyre presents the Thomistic tradition as the principled opposition to these rulers, and to the state power that now “represents” the fictive “people”. But how democratic is Thomistic natural law?

MacIntyre also rebuts the idea that theologians are arbiters of the ‘exceptionless precepts’ of the natural law. J. B. Schneewind attributes this elitism to Thomas’s position. MacIntyre argues that plain persons, in Thomas’s view, can access the truths of law with natural reason. There is secular access to the truths of natural law for everyone:

The role of the philosopher and the theologian in supplying the needed arguments is therefore an important and even in some cases an indispensable one. But with respects to the precepts of the natural law what Schneewind alleges about Suárez – “that the theologian is the ultimate source of knowledge on law” – could not be any part of a Thomist position and is not Suárez’s position. It is, Suárez says clearly, through the natural light of understanding that all the precepts of natural law are promulgated. (59)

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