Revue de la B.P.C.                          THÈMES                                      III/2012

 

http://philosophiedudroit.org

 

Mise en ligne le 12 avril 2012

______________________________________________________________________________

 

What can Natural Law Theory get from Environmental Ethics ?

Un philosophe du droit japonais s’interroge

au lendemain des catastrophes de 2011

 

par Hiroshi Takahashi (*)

 

 

 

Foreword

 

Environmental challenges unprecedented in the history of this planet, formulated environmental ethics in the West in the latter half of the twentieth century. This new ethics soon gave rise to the deep interest in the academic world of legal philosophy. But when it came to the actual inquiry, legal philosophers were completely at a loss what to do, because it seemed to them that the subject matters and the approach of environmental ethics were too different in kind. In the first place, the traditional legal theory used to study legal systems from the viewpoint of personal relations. On the contrary, environmental crises pressed jurists to control personal relations from the viewpoint of material and natural relations.

Stated quite simply, the point of understanding of environmental ethics depends on how we view “nature”. There are conflicting views of nature in legal philosophy, that is, the natural law theory and the legal positivism. The latter is based on the principle of dualism of nature and value and excludes value from nature. Then, nature is viewed as ‘res’ which is beneficial to human beings in economic systems and it has no inherent values. The former, however, understands human nature as reason, carefully avoiding the “naturalistic fallacy”. They find the principles of legal values in human nature and make much of conscience as the light of reason. But conscience is fundamentally oriented to the human act in human society. It is still pending how conscience has to do with the “respect for nature”. It is a perplexed problem also for the proponents of   natural law theory, whether inherent values subsist in the natural world or not.

As the case may be, also the natural law theory may be pressed to modify its own original theory while making a study of environmental ethics. In this connection, our article is intended for making room of the reconsideration about relationship between natural law theory and anthropocentrism.

 

 

Various standpoints of environmental ethics

 

1-1. Moral valuation on nature by nonanthropocentrism 

 

What did European, who visited America first, think of the vast wilderness in America? Some thought that it had to be controlled, so that it did not hinder the growth of the civilization, while others thought that it was not mere commodities to be used for human consumptions, but it had the spiritual and aesthetic value which should be preserved from the human activity that would degrade it. The famous debate between Gifford Pinchot and John Muir, which is called conservation-preservation debate later, symbolizes the two major competing views of the natural world.   

It was Aldo Leopold’s ‘the Land Ethic’ that has taken over this debate. He pointed an evolution of ethics and proposed an extension of moral standing to the land. We must no longer treat the land as a mere stock that can be used and shaped in any way that we desire. The land is the Matrix of all living things. Because the land has a highly organized pyramid-structure of soils, waters, plants, and animals, which has developed through millions of years of evolution, the human interference with this complex structure must always be humble and constrained. It is true that the land has an ability of self-regulation in spite of the human intervention, but, when changes would be introduced abruptly and violently, the potential for disaster were genuine.  

Now human beings are members of the biotic community rather than conquerors of nature, the land ethics requires a radical change in human psychology brought about through the moral and ecological education. “An ethical relation to land can exist without love, respect, and admiration for land, and a high regard for its value.” By value Leopold means value in the philosophical sense which is far broader than mere economic value. He calls this ethical attitude toward ecological wholes the ‘ecological conscience’ and states that “a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise”. Therefore Leopold’s view is called the ethical holism, because right and wrong are a function of the well-being of the biotic community, not of its constituent members.   

Turning our eyes from America to Europe, also here we can find a similar ecological movement after a while. The Norwegian philosopher Arne Naess developed the “Deep Ecology” first. He introduced a distinction between the deep and the shallow ecology. He characterizes the shallow ecology movement as committed to the “fight against pollution and resource depletion”. It is an anthropocentric approach with a central objective to protect the “health and affluence of the people in developed countries”. Deep Ecology, on the other hand, takes a “relational, total-field” perspective, rejecting the “man-in-environment image” in favor of a more holistic approach.

To put it simply, the shallow approach looks only at the immediate effects of the environmental crisis. Just as a sneeze or a cough can disrupt a person’s daily routine, pollution and resource depletion disrupt the lifestyle of modern industrial societies. However, it would be a mistake for medicine to treat only sneezing and coughing and not investigate their underlying causes. That goes for the shallow approach, too. It is a mistake for environmentalists to be concerned only with pollution and resource depletion without investigating their social and human causes.

Deep Ecologists seek to develop and articulate an alternative philosophy to replace the dominant worldview that is responsible for the crisis. Now the alternative is to be radically different from the European worldview, they rely on Eastern poetry, Buddhism, and spiritualism. The practical ethic of Deep Ecology is best seen in the two ultimate norms. These are self-realization and biocentric equality.

Self-realization is a process of self-examination in which people come to understand themselves as part of a greater whole of nature. There is no firm ontological divide between humans and non-humans. We know ourselves not as individuals separate from nature but as a part of a greater ‘Self’. They deny the individualistic understanding of  ‘self’ in the European philosophical tradition and use ‘Self’ to refer to the holistic and relational view of self. Biocentric equality is the recognition that all organisms and beings are equally members of an interrelated whole and therefore have equal intrinsic worth. Deep Ecologists suggest treating human interests as equal to the interests of other living things. They seek a more democratic, and less hierarchical, equality. This means that humans ought to live in simple, relatively non-technological, self-reliant, decentralized communities.

Besides Leopold and Naess, many and various nonanthropocentrists entered the stage. They attribute intrinsic value to humans and to nonhuman entities. But they vary in how inclusively they view the moral community. If something lies within a circle of moral community, it possesses direct moral standing. It is said to have intrinsic value which is respected as self-end. If something lies outside of the moral community, it possesses no moral standing. It is said to have instrumental value, as far as it is only a means to some other ends. The views of nonanthropocentrism differ most markedly in their attribution of intrinsic value to diverse things in the world. If we extend the circle of moral community to certain animals, we arrive at Zoocentrism (P.Singer,T.Regan). If we extend the circle of moral community to individual organisms, we arrive at Biocentrism (P.W.Taylor). If we extend the circle of moral community to ecosystem or species, we arrive at Ecocentrism (J.B.Callicot,H.RolstonⅢ). If we extend the circle of moral community to nature as a whole, we arrive at Physiocentrism(K.M.Meyer-Abich).

 

1-2. Retort from the side of revised-anthropocentrism

Against the rushing stream of Western nonanthropocentrism in 1970s, John Passmore, an Australian philosopher, argued that while the dominant traditions of Western thought are guilty as charged with the large-scale environmental destruction, yet the Christian or utilitarian teachings, can provide the resources to resolve environmental controversies, as long as some of the rubbish that lies in their teachings, are removed. We need not abandon the Western tradition, calling for mysticism, nature-as-sacred view, and animal rights as “a new set of moral principles”. For example, we can get away with the application of the generally accepted principle that “nobody ought to poison his neighbor” regarding to the ethical problems associated with pollution.

Passmore’s strategy was to adopt the anthropocentric outlook typical of Western moral and liberal theories and then apply it to the current controversies about human exploitation of nature to show that it neither blinds us to the environmental crisis nor denies us grounds for criticizing destructive exploitation as wrong. He emphasized that Western scientific reasoning is playing an important role in helping to bring about this criticizing. Science has challenged the old belief that Earth’s resources exceed our ability to consume them. Hence, in order to bear a responsibility regarding to the natural world, we need a more reasonable thinking, but not a transcendent intuition.

Also Bryan Norton, an American Philosopher, was skeptical about the recognition of intrinsic value of nature. But his standpoint is somewhat different from Passmore’s one regarding to the insight of nature. Norton appreciates the ‘respect for nature’ after its fashion, as long as the irrational explanation of nature is removed. He perceives that it has an educational effect on humanistic life. In the mid-1980s Norton developed “week anthropocentrism” as accommodating a theory of environmental value within the   humanism. He emphasized the role of nonhuman nature as a lofty teacher of human ideals and a good shared among generations. Week anthropocentrism thus was positioned as a moderate alternative to both narrow forms of economic valuation of “strong anthropocentrism” and nonanthropocentric arguments.

Norton presented the concept of “transformative value” as the normative core of week anthropocentrism. Contact with wild species and ecosystems could prompt individuals to evaluate critically and transform their exploitative, consumer-centered preferences into more environmentally benign ideals compatible with an ecologically enlightened worldview. But in the 1990s, Norton’s stance evolved into a more explicitly pragmatic approach. Norton concluded that the anthropocentric-nonanthropocentric debate in environmental ethics was not as important as previously thought, because it did not thwart political agreement on common policy goals. And today as well, many of anthropocentrists are taking an increasing interest in the environmental pragmatism.

Environmental pragmatism argued that environmental ethics so far had been too dependent on theoretical considerations to address the areas of practical decision making. Environmental ethics has proved fruitless, because it stuck to a prejudice that the standard of ethics has to be truth. According to pragmatist, ethics has to direct its attention to a particular context on which a suitable method for decision making depend. Since the practical reasoning cannot necessarily present the certain advice, pragmatism goes toward tolerance, respect for opposite opinion, and compromise, if various views in conflict are equally reasonable.

Such approach places too much emphasis on open procedure to decision making than on product of the only true result from arguments. Therefore it supports democracy to ensure that all involved parties have their say in ethical debates. Environmental pragmatism shows deep interest in the “sustainable development” which aims at the harmony of our technological culture with the environmental stability. Then it gets on closer terms with the utilitarian principle on which a long-range plan of the resource conservation is drawn up making use of the economic cost-benefit calculation. Now the ethical characteristic of environmental ethics fades away.

The above fundamental retorts from the revised-anthropocentrism as follows:  

When nonanthropocentrists speak on the subject of “interest” and “suffering” of living things, one must watch for an exaggerated expression. In order to show the new relationship with the natural world, they are apt to turn phrases as “solidarity”, “brotherhood” or “partnership”, which are normally reserved for human communication. However in the relation of humans to animals and plants, partnership with equal rights cannot stand up. Real partnership is valid only among humans. Humans cannot want animals and plants to act morally from the beginning, because latter is shut out of matters of moral good in principle. Partnership is essentially characterized by the  mutual communication. Humans cannot exchange thought and sentiment with nonhumans. Former is different from latter in making a community life with reason.

Nonanthropocentrists attempt to level humans with other nonhumans. But in reverse this attempt is counterproductive regarding to the conservation of nature. If there would be no difference between humans with other nonhumans, so there would be no responsibility of humans for nature. In case of conflict of humans with other nonhumans, the criterion of solutions stands on the side of human reason, not on the side of nature, because brutality, destruction, and struggle for existence would come to replace reason as norm, if the say of nonanthropocentrists were granted.

 

1-3. Environmental Justice Theory    

Above we referred to nonanthropocentric extensionism. But taking account of a new proposal “intergenerational ethic”, we can refer to anthropocentric extensionism. An ethicst Joel Feinberg requires extending rights to future human beings, because they also have an interest in a habitable environment against contemporary people. Here we can find the application of the rule of equity or fairness to the intergeneration. Especially John Rawls argued on the basis of his own hypothesis “veil of ignorance” that savings for future generation follow the same principle of fairness as savings for contemporary generation. Under the standpoint of Justice the difference of time is rightly to disregard.

Those who advocate newly Environmental Justice, attempt not only to establish an intergenerational ethics along the vertical dimension of time, but also to apply the rule of fairness to social, cultural, and international regions on the horizontal dimension of contemporary world. Like this, Social Ecology was formed on the economic conflict  regarding to domestic affairs (Murray Bookchin), Ecofeminism was formed on the sexual conflict regarding to cultural affairs, and Global Justice is pursued to stop the North-South gap. The common purpose is to correct the discriminatory treatment by generation, class, sex, and state.

Environmental Justice Theory wrestles with the environmental problems not only from the viewpoint of extension of moral standings, but also from the aim of correction of the unfairness which has so far continued to oppress the human relations and the international situation. Its keynote is to give relief to the weak, disclosing the ideological deception of the strong to light. It dislikes oppression and exploitation in any cases. It strives for utopia of no oppression. Adopting such a view regards as the protection of nature, while the weak corresponds to nature, the strong corresponds to humans. It is true that for example Ecofeminism rejects the nature-culture dualism in favor of nature, because culture is a hotbed of discrimination. But the dominant concern of Environmental Justice Theory consists in remaking of unequal society in accord with Justice rather than in protection of nature. The more the human and international relations are improved, the more the environmental conditions would be improved as a matter of course. The former question must be settled first. The latter case can wait.

 

 

What the natural law theory gets from environmental ethics

 

We have so far mentioned to various proposals and sharp disputes in environmental ethics from the typical views of nonanthropocentrism, revised-anthropocentrism, and environmental justice theory. Now we attempt to tackle the question what legal philosophy, especially the traditional natural law theory can learn from these new views in order to extend its own knowledge. What we are concerned here is whether the principle of human dignity can be widely supported in front of the principle of respect for nature beyond the human unique society or not. The key to answer would consist in another meaning of “Noblesse oblige”.

 

2-1. Distinction between an idea of nature and one of life

Proponents for natural law theory must be careful, lest they would be misunderstood, whenever they use the word “nature” in the normative sense. While living things belong to natural environment, natural environment does not consist of only living things. Air, soil, water and so on are in themselves inorganic substances, even though the sources of diverse organic lives. This means that natural environment is not necessarily profitable for life, is but also what befalls suddenly as dreadful disaster contrary to our expectation. It was the great Earthquake and Tsunami that struck the East Japan last year that forced to rethink about evaluation of the natural environment.

We owe our affluent daily life to the riches of Nature. That is why we have strong interest in Nature. But we find it clear that Nature is “indifferent” to intentions of humans, when the high civilization built up strenuously was broken to pieces in no time. While humans put their confidence in Nature’s value (intrinsic or instrumental), Nature is value-indifferent to humans and other living things. A crack runs between life and Nature, though the latter is matrix of the former.

In discussion about the environmental issues there is an image of nature that nature is too delicate to be protected from the violent intervention by humans and that the order of nature is not restored never again once it cease to exist. But to put it more precisely, the above applies to the order of life, not to Nature. We have put too much confidence in our knowledge regarding to Nature to notice the absurdity lying behind Nature and being out of our hand. Nature is “value-uninterested” in the working of humans. Light and Rain from heaven pours on the good man as well as the bad man.

It is not groundless that the parole “Come back to the Nature” is damned as illusion. Nature is not necessarily a wholesome world. It has the dark side of death behind the light side of life. It does not function necessarily in accordance with the mild and peaceful laws. In reverse humans have been threatened by Nature for a long time. Those who today long for the lost paradise, do not notice how much our ancestors had been tossed about by natural disasters.

All risks such as starvation and exhaustion of resources, to which we have been exposed ourselves, cannot be escaped by a romantic making holy of Nature. On the contrary, we need further technology which is harmony with humans, society, and environment. Humans cannot live without technology. Looking at technology as enemy leads to no solution of the problem. It is important to make technology serve our demands, getting rid of excessive destructive power of it against humans and Nature. What is crucial is that the modern technology lacks an ecological implantation. This cognition, now, come to encourage the proponents of nonanthropocentrism in reverse.

 

2-2. Turning point of civilization; progress or safety of society ?

So far we have argued that while Nature is the common matrix bringing up all living things, it has another face of the obstruction to all life activity. One cannot talk about “consistent Order of Nature”. As long as Nature has a dark side, because of which humans seek of light and challenge against Nature, the say of anthropocentrists is not wrong. But it is other problem whether this challenge against Nature is suitable or not. The excessive destruction of natural environment by the industry with high technology has come to threaten the ecosystem of nonhumans and the safety of human society. In consideration of the unexpected changes, one can say rightly the high technology has also a dark side of death. By contrast nature as order has a light side of life,

The disaster on a large scale was brought by accidents in Fukushima nuclear power station which Tsunami caused beyond our expectation last year. With this accident as a start, possibilities of risks to be brought by high technology have created a great controversy among public, no matter who is nonanthropocentrist or anthropocentrist. How Nature will turn out is anybody’s guess. As well, how the industrial utilization of advanced technology will be influential with future generations is anybody’s guess. Regarding to this problem, someone argue that humans must be cautious to the further development of industrial utilization of high technology, especially of nuclear energy or of genetic engineering, the others argue that “symbiosis with technology” should be the well-spring of the progress of human beings as used to be ,even though with risks,.

Those who lean toward progressivism emphasized that so far humans have never made a choice to reject the technology once attained, whenever standing at the crossroads of risks of accident. It is true that humans should aim at safty100%, providing for safety measure more strongly than before, but risks never come to 0, even if near 0, at all efforts. Accident accompanies high technology. There is no perfect safety. Therefore we cannot help confronting troubles without frightening of accidents. As long as “symbiosis with high technology” is inevitable in order to enjoy a dream of life, there is nothing that we can do but seek for “more safety”. 

German legal philosopher Arthur Kaufmann once stated on the serious moral problem of the advanced technology as follows. According to him, natural law theory is no good any more to the highly fluid and complex modern society, because it sticks to the given simple and fixed rules which have validity only in the confined steady community where all people are easy to reach agreement. But in the liberalized and globalized society anyone cannot act on all affairs without running a risk, because there is not given rules. Nevertheless, if adventurous undertakings were flatly prohibited by law, because their results were not previously exactly assessed, such a society would be stagnant after all. In order to get along well with the modern society, we should not hesitate to step into “unknown, uncertain, and unstable” matters. If such an attitude is accepted at all, “tolerance” comes to one of the important moral orders in the contemporary society. Owing to tolerance, we are open to new matters and can wrestle with future challenge.

Only there remains a question that tolerance enables us to act not only with responsibility but also without responsibility. Here Kaufmann embraces German philosopher Hans Jonas’ “the principle of responsibility” in order to compensate his “the principle of tolerance”. This is important in the case of utilization of biotechnology, generic engineering and, above all, nuclear energy. On the last case we cannot predict and control its large-scale harmful outcomes. Therefore reason orders us the most cautious attitude. Jonas made the duty of care for future generation look like Kant’s categorical imperative. It was made in line with the model of responsibility of parents for children and of responsibility of statesman for people. One must not place a big bet on the continuation in itself of mankind before everything.

 

2-3. Distinction between the subject of life and the subject of moral

We has so far mentioned to some significant advices for natural law theory from the preservation-conservation debates in environmental ethics and from the experiences of   disasters in East Japan. The latter demonstrated that there are both the light side and the dark side in both Nature and high technology. Now with the teachings of Kaufmann and Jonas clue, we can say that both “the principle of tolerance” and “the principle of responsibility” are indispensable for natural law theory in view of the dark sides in Nature and high technology. Both the human dignity and the ecosystem of all living things should be respected. But we must be cautious that respecting for human dignity is different from respecting for Life. Let us next consider the proposal peculiar to nonanthropocentrism that each of living things have its own intrinsic interest and strives to gain each end of interest and that its interests has to be respected equally.

It is also Aristotle’s view that each of living things strives to complete its own wellbeing. From this view we can go a step further and bring out a new understanding on Life. What does the word “strive” mean? Any efforts of living things are indifferent with human evaluation. A beautiful flower in the Andes blooms for its own interests, not for humans, even though humans and insects are respectively interested in that flower. As you see, it is an excellent intuition of nonanthropocentrism which pointed out that individual organism has a proper subjectivity. The word “Subjectivity” presupposes a kind of freedom. Freedom presupposes a distance from an inorganic substance. On occasion individual organism has to resist against the inorganic substance in order to maintain its own life, because the dark inorganic substance will drag the individual organism down into the depth of death. Here is the essential meaning of the “strive against”. Human beings can recognize connaturally that preserving own life, whatever it is, is good. Therefore it is right to tell that humans should not destroy the life of individual organism at random, as long as the latter also has a kind of subjectivity.

However this recognition does not mean recognition of the “rights” of nonhumans at once. Indeed all lives long for wellbeing, whatever of humans or of nonhumans, at first place. But whoever is subject of rights can also be subject of duties. Nonhumans cannot get to subject of duties, even though they are subjects of lives. We only realize rights and duties, when some lives are in stage of human beings. We must distinguish the subject of moral from the subject of life. The subject of moral is also the subject of life, but the subject of life is not the subject of moral. Christopher Stone, American legal philosopher, introduced “Right of Nature” as a legal means of the help of endangered species. In order to start the lawsuit against the executive officer, he thought of application of the “guardianship” in the traditional Anglo-American Law. Recently this trial begins having a success. This success owes to the alteration of his earlier philosophical standpoint that every living thing has intrinsic value, which is valuable in its self and is not valued simply for its use. His innovative proposal aims at getting good practical results rather than a kind of theoretical system. Thinking theoretically, it is not appropriate to apply the word “right” to mere life or nature.

According to Biocentrism, interest of every living thing should be equally respected. But a question remains regarding to the word “equally”. There is a hierarchic order in the natural world (scala naturae). The mixed things are more perfect than the elements.  Inequality comes from the perfection of the whole. “Goodness of an animal would be taken away if every part of it had the dignity of an eye” (Thomas, S.T. Ⅰ,Q.47,Art.2). The perfection of natural world requires the vertical diversity of its parts. We are tacitly and connaturally valuing life of each living thing in proportion to the difference of position in this order. The ordinary intuition teaches that it is difficult to respect for the interests of humans and nonhumans equally.

Considering the above mentioned argument on biocentric equality, it is appropriate for us to say that while humans are “subjects” who can act morally, nonhumans are “objects” which can receive moral treatment from humans in proportion to the difference of position in animals and plants. Viewing morally, humans bear the responsibility for not only human family, but also for nonhumans. Those who receive benefit should not injure those who or which give benefit. This is moral rule. On the contrary nonhumans have no ability to fulfill their responsibilities as the moral agency.

 

2-4. On “the Law of Species”

We said that humans should bear the responsibility for nonhumans. If so, should we bear the responsibility for every individual living thing? If this is nonsense, it is an important question to be answered what objects should be cared about morally. We will say that the object of cares for nonhumans is not the existence of “individuals”, but speaking exactly, the maintenance of “species” to which individuals belong. That one species ceases means that after this the same kind of individuals does not come into existence. If such extinction are brought about by humans unless in the case of natural disaster, humans should bear the responsibility for species, as well as one is guilty of murder, not guilty of death caused by nature. Hence recognizing the responsibility or duty regarding to nonhumans on the side of humans is more persuasive rather than recognizing the right on the side of nature. After all ethics whatever it is, depends on human own efforts. Then, how ought we to consider the “responsibility for species” instead of the “right of nature”?  

Species is the common “eidos” of individuals. It continues forever beyond the short life of individuals. Here we must attention to the medium position of species between individual and genus just as the case in formal logic. One must not dissociate the species from the context of the individual and the genus. One must not consider alone the species. Moving the individual-species-genus relation from formal logic to environmental ethics, the individual is a “receptacle” of the species and the genus corresponds to the common natural environment where individuals exist diversely. Species loses its own dwelling without individual. Genus is an ecosystem which integrates all sorts of species from the higher grade to the lower one.

Individual is, on another viewpoint, the subject who transcends both species and genus. However close to individual one may determine species and genus, one cannot reach individual. In reverse individual includes species and genus as own attributes. In contrast genus is the place where diverse individuals are born, grow, and die.   

Based on our above argument, we can introduce the following characteristics regarding to individual-species-genus relation. First, species takes horizontally an intermediate position between the narrower community and wider one. Second, species takes vertically an intermediate position between the higher grade and the lower one of living things. Third, while individual include the species and the genus on the intensive viewpoint, genus and species subsume individuals on the viewpoint of extent. That is why Pascal said “man is a thinking reed”.

From here we can introduce the fundamental structure specific to humans. Humans are microcosm that includes the reason as its top and the organic system as its base. And yet, humans are only members of macrocosm and are obliged to obey to the universal order. Humans are not only the moral subjects, but also the life subjects. They are the complex matter-form synthetic substances. Although they are unique rational persons, they are common with other living things in the dimension of species. Owing to be the complex substances, they can connaturally, hence just like morally penetrate into the diverse “eidos” specific to other living things.

For example, supposing the fresh and green color of lawn in the garden turned yellow, it is on the base of the scientific observation to say that lawn “wants” (=lacks) water. On the contrary, it is because of the moral nature specific to human beings to say that lawn “wants” (=desires) water. This sympathy should not be neglected as a mere primitive thinking of animism. The connatural cognition of life is not to be confined to our neighbor. It extends further to other living things in the proportion to the life’s degree.

How would we better treat other living things as subjects under the law, by the way?  In order to be able to talk on “right” or “duty”, hence on “legal subject” at all, there must be an “objective law” in advance. Subjective right is subject to objective law. Natural law is thought as an objective law which makes persons the moral subjects of rights or duties before positive law. Supposed one could talk on “Right of Nature” at all as some environmentalist groups have already insisted on, there must an objective law have been in advance. Whatever is this objective law which invests “Nature” with “Right”? It is clear that this is not a kind of natural law, because natural law addresses human persons. Like this, if we will avoid a coined word and make use of the familiar term from the traditional natural law theory, we might say it would correspond to “eternal law” at present, because eternal law is thought as an objective law with an analogy, which makes nonhumans the subjects of life. Only this subject is, strictly speaking, not the subject of rights or duties in moral, but one of good or bad for life.

We cannot reach such a law from the study of ecology or cost-benefit calculation. Indeed doctor can instruct how one can keep one’s health. But he cannot teach how rightly one should lead one’s life. Equally, ecology and utilitarianism can instruct how many people can enjoy as much happiness as possible in the ecological and economical limit. But they cannot teach how rightly human beings should have to do with “Nature”. So, who teaches how rightly human beings should have to do with Nature? We must remember that only human beings who were trusted with the taking care of nature by God, can cooperate in the work of creation through their alone given “reason”. This reason is no longer “technical reason”. It is rather “moral reason”. Whatever is the ground of such an universal moral at all? Here we need to revive Thomas’ word “natural law is the participation by rational creatures in the eternal law” far from the history.

 

2-5. Rethinking of the eternal law

Thanks in large part to the environmental crisis, ethical reflection has come to realize that natural law is not an ultimate principle of law, but belongs part and parcel to a more comprehensive order of “nature”, and that reason, however much it is conditioned by its surroundings, can only hope to direct human existence to its fulfillment by keeping this larger whole in sight. In the past, natural law has been reduced to the idea of “human dignity” and in that form reigned as the supreme principle of law .But human reason is not something that belongs to human individuals. This is what lies behind the old idea of “eternal law”, an idea that has figured prominently in traditional national law theory but otherwise has not attracted much attention in legal philosophy where the idea of natural law has been dominant.

Which is more perfect Persona or Ordo Universi? The following words of Thomas are helpful to us in making the relation between lex aeterna and lex naturalis clear.  Thomas had treated of “the end or term of the production of man” and inquired “whether the image of God is to be found in irrational creatures?” ( S.T. Q. 93. Art 2.). He stated “Obj.3” to this question as follows:

The universe is more perfect in goodness than the intellectual creature as regards extension and diffusion; but intensively and collectively the likeness to the Divine goodness is found rather in the intellectual creature, which is capable of the highest good. Or else we may say that a part is not rightly divided against the whole, but only against another part. Therefore, when we say that the intellectual nature alone is to the image of God, we do not mean that the universe in any part is not to God’s image, but that the other parts are excluded.

His Reply to Obj.3 as follows:

Further, the more perfect anything is in goodness, the more it is like God. But the whole universe is more perfect in goodness than man; for though each individual thing is good, all things together are called very good. Therefore the whole universe is to the image of God, and not only man.

Thomas held that natural law is not the ultimate basis of positive law but merely the participation by rational creatures in an eternal law. Unlike Kant, for whom human reason was the supreme lawgiver, Thomas sees reason merely as the prudent legislator who deliberates on the course of human existence, investigating the very being that made  reason possible in the first place. Eternal law opening itself to the probing of human reason belongs to a larger history of nature unfolding itself. Unlike natural law which is oriented to the common good of human existence, eternal law is oriented to the common good of being as a whole. Indeed, for Thomas even natural law itself as the law of human existence that takes precedence over the law of state, only enjoys that precedence within a wider order of creation.

Prior to the emergence of environmental consciousness, no one gave a second thought to the possibility of fatally interfering with the order of the universe. As a result, eternal law remained a matter of abstract speculation. Universal order was, as Aristotle put it, what cannot be other than it is. Everyone simply assumed that such a world was beyond the reach of human ethical choice. In such circumstances, it is hardly surprising that natural law should have been accorded first place among the practical principles ruling human conduct. With the modern period, the normative function of natural law was cut off from nature as a whole and restricted to the human world.

The contemporary environmental crisis has made such a position untenable. Even the natural world, both within the human and without, fall under the class of what Aristotle called things that can be other than they are. Ecological standards and laws governing live species have become the objects of ethical deliberation precisely because the very life of the biosphere and human existence with in it are in peril of extinction. It is in this context that eternal law is being resurrected as a category of legal thought and that some environmentalists are calling for are reinterpretation of the philosophy of nature as a practical philosophy.

The relationship among eternal law, natural law, natural right and positive law, therefore, is not merely a speculative problem but one with concrete consequences in environmental ethics and bioethics. At the same time, care must be taken to preserve the reliance on scientific methodology. The empirical approach of objective science is universally accessible and hence enjoys a persuasive power that is missing in theological ideas of eternal law which presuppose the rational will of a divine creator. At, this point, we can depend on Thomas’s theory on the structure of “inclinations” of human being in order to discover there existential means that can serve as criteria for moral conduct To introduce the ecological dimension into the philosophical discussion. We need a more inclusive appreciation of the idea of eternal law . A revitalized idea of eternal law needs to break through the anthropocentric model as well.

On the theological model, eternal law is the law by which God rules creation. Its content is nothing other than the very ideas that God uses in his conduct by rational reflection and promulgation. God's law stamps its principles of being and action on all creature innately. It sets up a permanent hierarchy in which all beings are ranked relative to each other, such that the lower serve as means for the fulfillment of the higher. This chain of being determines the nature and participation of each creature in the eternal law. Creatures that lack the power of reason act in accord with unconscious and instinctual drives, while rational creatures enjoy the privilege of rational reflection. This latter, however, remains as much a part of their nature as do the drives they share with the lower animals. That is, reason belongs to the eternal law and is thus never entirely at the disposal of the human agent. Eternal law impels human nature to fulfill itself against oppositions through reasoned self-determination and self-responsibility. At bottom, universal life pursues its own wellbeing at work in eternal law.

In the model, eternal law is thought as more immediately regulative of species than it is of individuals, and this applies no less to human beings. The essential and specific “eidos” of human existence does not leave any room for human alterations. One thinks here, for example, of gene manipulation, which is a serious intervention into the domain of eternal law. This is not to say that eternal law admits of no intervention at all. Indeed human reflection intervenes in order to seek out ethical criteria to live by. Even so, eternal law remains a necessary condition for human reason to fulfill human nature. The inventory of technological disasters driving modern civilization to the verge of environmental catastrophe suggests that we have already crossed over the threshold of permissible intervention in eternal law. Now more than ever the bond between the preservation of the natural world and the notice to eternal law needs to be strengthened and even to be given priority over the human-centered demands of natural law. It owes to the ontological excellence of human beings that we should care not only for the own wellbeing but also the care for the wellbeing of being itself.

Finally a main question must be answered. It is “to whom” human beings should bear the responsibility for other living things and future generations. The key to the answer would ultimately lead us to a hidden Lawmaker of Eternal Law.

 

References:

 

J. Baird Callicot and Bobert Frodeman (Editors in Chief) (2009), Encyclopedia of environmental ethics and philosophy, GALE.

Des Jardins J. R., (2001) Environmental Ethics : An Introduction to Environmental Philosophy, 3ed.

A. Kaufmann, (1993), Über Gerechtigkeit ― Dreissig Kapitel praxisorientierter Rechtsphilosophie.

H. Jonas, (1979), Das Prinzip Verantwortung ― Versuch einer Ethik für technologische Zivilisation.

Thomas Aquinas, Summa Theologica, translated by Father of the English Dominican Province, Revised by Daniel J. Sullivan ; by Encyclopaedia Britannica, Inc. 1952.

 

(*) Hiroshi Takahashi (1948), Professor of Faculty of Law in Nanzan University since 1991.

____________________________________________________________

© THÈMES, revue de la B.P.C., III/2012, mise en ligne le 12 avril 2012