Can artificial intelligence be smarter than a person? Answering that question often hinges on the definition of artificial intelligence. But it might make more sense, instead, to focus on defining what we mean by “smart.”
In
the 1950s, the psychologist J. P. Guilford divided creative thought
into two categories: convergent thinking and divergent thinking.
Convergent thinking, which Guilford defined as the ability to answer
questions correctly, is predominantly a display of memory and logic.
Divergent thinking, the ability to generate many potential
answers from a single problem or question, shows a flair for curiosity,
an ability to think “outside the box.” It’s the difference between
remembering the capital of Austria and figuring how to start a thriving
business in Vienna without knowing a lick of German.
When
most people think of AI’s relative strengths over humans, they think of
its convergent intelligence. With superior memory capacity and
processing power, computers outperform people at rules-based games,
complex calculations, and data storage: chess, advanced math, and Jeopardy. What computers lack, some might say, is any form of imagination, or rule-breaking curiosity—that is, divergence.
But
what if that common view is wrong? What if AI’s real comparative
advantage over humans is precisely its divergent intelligence—its
creative potential? That’s the subject of the latest episode of the
podcast Crazy/Genius, produced by Kasia Mychajlowycz and Patricia Yacob.
One
of the more interesting applications of AI today is a field called
generative design, where a machine is fed oodles of data and asked to
come up with hundreds or thousands of designs that meet specific
criteria. It is, essentially, an exercise in divergent potential.
For
example, when the architecture-software firm Autodesk wanted to design a
new office, it asked its employees what they wanted from the ideal
workplace: How much light? Or privacy? Or open space? Programmers
entered these survey responses into the AI, and the generative-design
technology produced more than 10,000 different blueprints. Then human
architects took their favorite details from these computer-generated
designs to build the world’s first large-scale office created using AI.
“Generative
design is like working with an all-powerful, really painfully stupid
genie,” said Astro Teller, the head of X, the secret research lab at
Google’s parent company Alphabet. That is, it can be both magical and
mind-numbingly over-literal. So I asked Teller where companies could use
this painfully dense genie. “Everywhere!” he said. Most importantly,
generative design could help biologists simulate the effect of new drugs
without putting sick humans at risk. By testing thousands of variations
of a new medicine in a biological simulator, we could one day design
drugs the way we design commercial airplanes—by exhaustively testing
their specifications before we put them in the air with several hundred
passengers.
AI’s divergent potential is one of the hottest subjects in the field. This spring, several dozen computer scientists published an unusual paper
on the history of AI. This paper was not a work of research. It was a
collection of stories—some ominous, some hilarious—that showed AI
shocking its own designers with its ingenuity. Most of the stories
involved a kind of AI called machine learning, where programmers give
the computer data and a problem to solve without explicit instructions,
in the hopes that the algorithm will figure out how to answer it.
First,
an ominous example. One algorithm was supposed to figure out how to
land a virtual airplane with minimal force. But the AI soon discovered
that if it crashed the plane, the program would register a force so
large that it would overwhelm its own memory and count it as a perfect
score. So the AI crashed the plane, over and over again, presumably
killing all the virtual people on board. This is the sort of nefarious
rules-hacking that makes AI alarmists fear that a sentient AI could
ultimately destroy mankind. (To be clear, there is a cavernous gap
between a simulator snafu and SkyNet.)
But
the benign examples were just as interesting. In one test of
locomotion, a simulated robot was programmed to travel forward as
quickly as possible. But instead of building legs and walking, it built
itself into a tall tower and fell forward. How is growing tall and
falling on your face anything like walking? Well, both cover a
horizontal distance pretty quickly. And the AI took its task very, very
literally.
According
to Janelle Shane, a research scientist who publishes a website about
artificial intelligence, there is an eerie genius to this
forward-falling strategy. “After I had posted [this paper] online, I
heard from some biologists who said, ‘Oh yeah, wheat uses this strategy
to propagate!’” she told me. “At the end of each season, these tall
stalks of wheat fall over, and their seeds land just a little bit
farther from where the wheat stalk heads started.”
From the
perspective of the computer programmer, the AI failed to walk. But from
the perspective of the AI, it rapidly mutated in a simulated environment
to discover something which had taken wheat stalks millions of years to
learn: Why walk, when you can just fall? A relatable sentiment.
The
stories in this paper are not just evidence of the dim-wittedness of
artificial intelligence. In fact, they are evidence of the opposite: A
divergent intelligence that mimics biology. “These anecdotes thus serve
as evidence that evolution, whether biological or computational, is
inherently creative and should routinely be expected to surprise,
delight, and even outwit us,” the lead authors write in the conclusion.
Sometimes, a machine is more clever than its makers.
This
is not to say that AI displays what psychologists would call human
creativity. These machines cannot turn themselves on, or become
self-motivated, or ask alternate questions, or even explain their
discoveries. Without consciousness or comprehension, a creature cannot
be truly creative.
But if AI, and machine learning in particular,
does not think as a person does, perhaps it’s more accurate to say it
evolves, as an organism can. Consider the familiar two-step of
evolution. With mutation, genes diverge from their preexisting
structure. With natural selection, organisms converge on the mutation
best adapted to their environment. Thus, evolutionary biology displays a
divergent and convergent intelligence that is a far better metaphor for
to the process of machine learning, like generative design, than the
tangle of human thought.
AI might not be “smart” in a human sense
of the word. But it has already shown that it can perform an eerie
simulation of evolution. And that is a spooky kind of genius.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
Derek Thompson is a staff writer at The Atlantic, where he writes about economics, labor markets, and the media. He is the author of Hit Makers.
Natural law (Latin: ius naturale, lex naturalis) is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature or society at large.
Contemporarily, the concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights (Latin: ius naturale), or natural justice. while others distinguish between natural law and natural right.
The use
of natural law, in its various incarnations, has varied widely
throughout history. There are a number of theories of natural law, that
differ from each other with respect to the role that morality plays in
determining the authority of legal norms. This article deals with its
usages separately rather than attempt to unify them into a single
theory.
Plato
Although Plato did not have an explicit theory of natural law (he rarely used the phrase 'natural law' except in Gorgias 484 and Timaeus 83e), his concept of nature, according to John Wild, contains some of the elements found in many natural law theories. According to Plato, we live in an orderly universe. The basis of this orderly universe or nature are the forms, most fundamentally the Form of the Good, which Plato describes as "the brightest region of Being". The Form of the Good is the cause of all things, and when it is seen it leads a person to act wisely. In the Symposium, the Good is closely identified with the Beautiful. In the Symposium, Plato describes how the experience of the Beautiful by Socrates enabled him to resist the temptations of wealth and sex. In the Republic, the ideal community is "a city which would be established in accordance with nature".
Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος)
on the other. What the law commanded would be expected to vary from
place to place, but what was "by nature" should be the same everywhere. A
"law of nature" would therefore have the flavor more of a paradox than
something that obviously existed. Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latinius naturale). Of these, Aristotle is often said to be the father of natural law.
Aristotle's association with natural law may be due to the interpretation given to his works by Thomas Aquinas.
But whether Aquinas correctly read Aristotle is in dispute. According
to some, Aquinas conflates natural law and natural right, the latter of
which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics).
According to this interpretation, Aquinas's influence was such as to
affect a number of early translations of these passages in an
unfortunate manner, though more recent translations render those more
literally. Aristotle notes that natural justice is a species of political justice, specifically the scheme of distributive and corrective justice
that would be established under the best political community; were this
to take the form of law, this could be called a natural law, though
Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric,
where Aristotle notes that, aside from the "particular" laws that each
people has set up for itself, there is a "common" law that is according
to nature. Specifically, he quotes Sophocles and Empedocles:
Universal law is the law of Nature. For there really is, as every one
to some extent divines, a natural justice and injustice that is binding
on all men, even on those who have no association or covenant with each
other. It is this that Sophocles' Antigone clearly means when she says
that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature:
"Not of to-day or yesterday it is,
But lives eternal: none can date its birth."
And so Empedocles, when he bids us kill no living creature, he is
saying that to do this is not just for some people, while unjust for
others:
"Nay, but, an all-embracing law, through the realms of the sky
Unbroken it stretcheth, and over the earth's immensity."
Some critics believe that the context of this remark suggests only
that Aristotle advised that it could be rhetorically advantageous to
appeal to such a law, especially when the "particular" law of one's own
city was averse to the case being made, not that there actually was such
a law;
Moreover, they claim that Aristotle considered two of the three
candidates for a universally valid, natural law provided in this passage
to be wrong. Aristotle's paternity of natural law tradition is consequently disputed.
Stoic natural law
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. Whereas the "higher" law that Aristotle suggested one could appeal to was emphatically natural, in contradistinction to being the result of divinepositivelegislation,
the Stoic natural law was indifferent to either the natural or divine
source of the law: the Stoics asserted the existence of a rational and
purposeful order to the universe (a divine or eternal law),
and the means by which a rational being lived in accordance with this
order was the natural law, which inspired actions that accorded with
virtue.
As the English historian A. J. Carlyle (1861–1943) notes:
There is no change in political theory so startling in its
completeness as the change from the theory of Aristotle to the later
philosophical view represented by Cicero and Seneca ... We think that
this cannot be better exemplified than with regard to the theory of the
equality of human nature."
Charles H. McIlwain likewise observes that "the idea of the equality of
men is the most profound contribution of the Stoics to political
thought" and that "its greatest influence is in the changed conception
of law that in part resulted from it.
Natural law first appeared among the stoics who believed that God is everywhere and in everyone (see classical pantheism).
According to this belief, within humans there is a "divine spark" which
helps them to live in accordance with nature. The stoics felt that
there was a way in which the universe had been designed, and that
natural law helped us to harmonise with this.
Cicero wrote in his De Legibus
that both justice and law originate from what nature has given to
humanity, from what the human mind embraces, from the function of
humanity, and from what serves to unite humanity. For Cicero, natural law obliges us to contribute to the general good of the larger society.
The purpose of positive laws is to provide for "the safety of citizens,
the preservation of states, and the tranquility and happiness of human
life." In this view, "wicked and unjust statutes" are "anything but
'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue."
Cicero expressed the view that "the virtues which we ought to
cultivate, always tend to our own happiness, and that the best means of
promoting them consists in living with men in that perfect union and
charity which are cemented by mutual benefits."
In De Re Publica, he writes:
There is indeed a law, right
reason, which is in accordance with nature ; existing in all,
unchangeable, eternal. Commanding us to do what is right, forbidding us
to do what is wrong. It has dominion over good men, but possesses no
influence over bad ones. No other law can be substituted for it, no part
of it can be taken away, nor can it be abrogated altogether. Neither
the people or the senate can absolve from it. It is not one thing at
Rome, and another thing at Athens : one thing to-day, and another thing
to-morrow ; but it is eternal and immutable for all nations and for all
time.
Cicero influenced the discussion of natural law for many centuries to
come, up through the era of the American Revolution. The jurisprudence
of the Roman Empire
was rooted in Cicero, who held "an extraordinary grip ... upon the
imagination of posterity" as "the medium for the propagation of those
ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville and the Decretum of Gratian." Thomas Aquinas,
in his summary of medieval natural law, quoted Cicero's statement that
"nature" and "custom" were the sources of a society's laws.
The Renaissance Italian historian Leonardo Bruni
praised Cicero as the person "who carried philosophy from Greece to
Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by Sir Edward Coke, was "steeped in Ciceronian rhetoric." The Scottish moral philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of
place as orator, political theorist, stylist, and moralist."
The British polemicist Thomas Gordon
"incorporated Cicero into the radical ideological tradition that
travelled from the mother country to the colonies in the course of the
eighteenth century and decisively shaped early American political
culture." Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui and later by the American revolutionary legal scholar James Wilson. Cicero became John Adams's "foremost model of public service, republican virtue, and forensic eloquence."
Adams wrote of Cicero that "as all the ages of the world have not
produced a greater statesman and philosopher united in the same
character, his authority should have great weight." Thomas Jefferson
"first encountered Cicero as a schoolboy while learning Latin, and
continued to read his letters and discourses throughout his life. He
admired him as a patriot, valued his opinions as a moral philosopher,
and there is little doubt that he looked upon Cicero's life, with his
love of study and aristocratic country life, as a model for his own." Jefferson described Cicero as "the father of eloquence and philosophy."
Christianity
Those
who see biblical support for the doctrine of natural law often point to
Abraham's interrogation of God on behalf of the iniquitous city of
Sodom. Abraham even dares to tell the Most High that his plan to destroy
the city (Genesis 18:25) would violate God’s own justice: "Can the
judge of the whole earth not himself do justice?" This almost Socratic
reply became for later writers the beginnings of natural rights theory.
In this respect, natural law as described in the interaction between
Abraham and God predates the later Greek exposition of it by Plato,
Socrates and Aristotle. The New Testament carries a further exposition
on the Abrahamic dialogue and links to the later Greek exposition on the
subject, when Paul's Epistle to the Romans
states: "For when the Gentiles, which have not the law, do by nature
the things contained in the law, these, having not the law, are a law
unto themselves: Which shew the work of the law written in their hearts,
their conscience also bearing witness, and their thoughts the meanwhile
accusing or else excusing one another.
The intellectual historian A. J. Carlyle has commented on this passage,
"There can be little doubt that St Paul's words imply some conception
analogous to the 'natural law' in Cicero,
a law written in men's hearts, recognized by man's reason, a law
distinct from the positive law of any State, or from what St Paul
recognized as the revealed law of God. It is in this sense that St
Paul's words are taken by the Fathers of the fourth and fifth centuries
like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no reason to doubt the correctness of their interpretation."
Because of its origins in the Old Testament, early Church Fathers, especially those in the West, saw natural law as part of the natural foundation of Christianity. The most notable among these was Augustine of Hippo, who equated natural law with humanity's prelapsarian
state; as such, a life according to unbroken human nature was no longer
possible and persons needed instead to seek healing and salvation
through the divine law and grace of Jesus Christ.
In the twelfth century, Gratian equated the natural law with divine law. Albertus Magnus would address the subject a century later, and his pupil, St. Thomas Aquinas, in his Summa TheologicaI-II qq. 90–106,
restored Natural Law to its independent state, asserting natural law as
the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law.
Meanwhile, Aquinas taught that all human or positive laws were to be
judged by their conformity to the natural law. An unjust law is not a
law, in the full sense of the word. It retains merely the 'appearance'
of law insofar as it is duly constituted and enforced in the same way a
just law is, but is itself a 'perversion of law.'
At this point, the natural law was not only used to pass judgment on
the moral worth of various laws, but also to determine what those laws
meant in the first place. This principle laid the seed for possible
societal tension with reference to tyrants.
The natural law was inherently teleological, however, it is most assuredly not deontological.
For Christians, natural law is how human beings manifest the divine
image in their life. This mimicry of God's own life is impossible to
accomplish except by means of the power of grace. Thus, whereas
deontological systems merely require certain duties be performed,
Christianity explicitly states that no one can, in fact, perform any
duties if grace is lacking. For Christians, natural law flows not from
divine commands, but from the fact that humanity is made in God's image,
humanity is empowered by God's grace. Living the natural law is how
humanity displays the gifts of life and grace, the gifts of all that is
good. Consequences are in God's hands, consequences are generally not
within human control, thus in natural law, actions are judged by three
things: (1) the person's intent, (2) the circumstances of the act and
(3) the nature of the act. The apparent good or evil consequence
resulting from the moral act is not relevant to the act itself. The
specific content of the natural law is therefore determined by how each
person's acts mirror God's internal life of love. Insofar as one lives
the natural law, temporal satisfaction may or may not be attained, but
salvation will be attained. The state,
in being bound by the natural law, is conceived as an institution whose
purpose is to assist in bringing its subjects to true happiness. True
happiness derives from living in harmony with the mind of God as an
image of the living God.
Heinrich
A. Rommen remarked upon "the tenacity with which the spirit of the
English common law retained the conceptions of natural law and equity
which it had assimilated during the Catholic Middle Ages, thanks
especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476)."
Bracton's translator notes that Bracton "was a trained jurist with the
principles and distinctions of Roman jurisprudence firmly in mind"; but
Bracton adapted such principles to English purposes rather than copying
slavishly.
In particular, Bracton turned the imperial Roman maxim that "the will
of the prince is law" on its head, insisting that the king is under the law.
The legal historian Charles F. Mullett has noted Bracton's "ethical
definition of law, his recognition of justice, and finally his devotion
to natural rights." Bracton considered justice to be the "fountain-head" from which "all rights arise." For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'" Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.
Fortescue stressed "the supreme importance of the law of God and
of nature" in works that "profoundly influenced the course of legal
development in the following centuries." The legal scholar Ellis Sandoz
has noted that "the historically ancient and the ontologically higher
law—eternal, divine, natural—are woven together to compose a single
harmonious texture in Fortescue's account of English law."
As the legal historian Norman Doe explains: "Fortescue follows the
general pattern set by Aquinas. The objective of every legislator is to
dispose people to virtue. It is by means of law that this is
accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'" Fortescue cited the great Italian Leonardo Bruni for his statement that "virtue alone produces happiness."
Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson.
St. Germain informs his readers that English lawyers generally don't
use the phrase "law of nature", but rather use "reason" as the preferred
synonym.
Norman Doe notes that St. Germain's view "is essentially Thomist,"
quoting Thomas Aquinas's definition of law as "an ordinance of reason
made for the common good by him who has charge of the community, and
promulgated".
Sir Edward Coke was the preeminent jurist of his time.
Coke's preeminence extended across the ocean: "For the American
revolutionary leaders, 'law' meant Sir Edward Coke's custom and right
reason."
Coke defined law as "perfect reason, which commands those things that
are proper and necessary and which prohibits contrary things". For Coke, human nature determined the purpose of law; and law was superior to any one person's reason or will. Coke's discussion of natural law appears in his report of Calvin's Case
(1608): "The law of nature is that which God at the time of creation of
the nature of man infused into his heart, for his preservation and
direction." In this case the judges found that "the ligeance or faith of
the subject is due unto the King by the law of nature: secondly, that
the law of nature is part of the law of England: thirdly, that the law
of nature was before any judicial or municipal law: fourthly, that the
law of nature is immutable." To support these findings, the assembled
judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.
After Coke, the most famous common law jurist of the seventeenth century is Sir Matthew Hale.
Hale wrote a treatise on natural law that circulated among English
lawyers in the eighteenth century and survives in three manuscript
copies. This natural-law treatise has been published as Of the Law of Nature (2015).
Hale's definition of the natural law reads: "It is the Law of Almighty
God given by him to Man with his Nature discovering the morall good and
moral evill of Moral Actions, commanding the former, and forbidding the
latter by the secret voice or dictate of his implanted nature, his
reason, and his concience." He viewed natural law as antecedent, preparatory, and subsequent to civil government, and stated that human law "cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits." He cited as authorities Plato, Aristotle, Cicero, Seneca, Epictetus, and the Apostle Paul. He was critical of Hobbes's reduction of natural law to self-preservation and Hobbes's account of the state of nature, but drew positively on Hugo Grotius's De jure belli ac pacis, Francisco Suárez's Tractatus de legibus ac deo legislatore, and John Selden's De jure naturali et gentium juxta disciplinam Ebraeorum.
As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws"
and by the Chancellor and Judges that "it is required by the law of
nature that every person, before he can be punish'd, ought to be
present; and if absent by contumacy, he ought to be summoned and make
default".
Further, in 1824, we find it held that "proceedings in our Courts are
founded upon the law of England, and that law is again founded upon the
law of nature and the revealed law of God. If the right sought to be
enforced is inconsistent with either of these, the English municipal
courts cannot recognize it."
American jurisprudence
The U.S. Declaration of Independence
states that it has become necessary for the people of the United States
to assume "the separate and equal station to which the Laws of Nature
and of Nature's God entitle them". Some early American lawyers and
judges perceived natural law as too tenuous, amorphous, and evanescent a
legal basis for grounding concrete rights and governmental limitations.
Natural law did, however, serve as authority for legal claims and
rights in some judicial decisions, legislative acts, and legal
pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.
Hobbes
Thomas Hobbes
By the 17th century, the medievalteleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractarian theory of legal positivism
on what all men could agree upon: what they sought (happiness) was
subject to contention, but a broad consensus could form around what they
feared (violent death at the hands of another). The natural law was how
a rational human being, seeking to survive and prosper, would act.
Natural law, therefore, was discovered by considering humankind's natural rights,
whereas previously it could be said that natural rights were discovered
by considering the natural law. In Hobbes' opinion, the only way
natural law could prevail was for men to submit to the commands of the
sovereign. Because the ultimate source of law now comes from the
sovereign, and the sovereign's decisions need not be grounded in
morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.
As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason,
by which a man is forbidden to do that which is destructive of his
life, or takes away the means of preserving the same; and to omit that
by which he thinks it may best be preserved."
According to Hobbes, there are nineteen Laws. The first two are
expounded in chapter XIV of Leviathan ("of the first and second natural
laws; and of contracts"); the others in chapter XV ("of other laws of
nature").
The first law of nature is that every man ought to endeavour
peace, as far as he has hope of obtaining it; and when he cannot obtain
it, that he may seek and use all helps and advantages of war.
The second law of nature is that a man be willing, when others
are so too, as far forth, as for peace, and defence of himself he shall
think it necessary, to lay down this right to all things; and be
contented with so much liberty against other men, as he would allow
other men against himself.
The third law is that men perform their covenants made. In
this law of nature consisteth the fountain and original of justice...
when a covenant is made, then to break it is unjust and the definition
of injustice is no other than the not performance of covenant. And
whatsoever is not unjust is just.
The fourth law is that a man which receiveth benefit from another
of mere grace, endeavour that he which giveth it, have no reasonable
cause to repent him of his good will. Breach of this law is called ingratitude.
The fifth law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, forward, intractable.
The sixth law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
The seventh law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
The eighth law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely.
The ninth law is that every man acknowledge another for his equal by nature. The breach of this precept is pride.
The tenth law is that at the entrance into the conditions of
peace, no man require to reserve to himself any right, which he is not
content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest.
The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between them.
The twelfth law is that such things as cannot be divided, be
enjoyed in common, if it can be; and if the quantity of the thing
permit, without stint; otherwise proportionably to the number of them
that have right.
The thirteenth law is the entire right, or else...the first possession (in the case of alternating use), of a thing that can neither be divided nor enjoyed in common should be determined by lottery.
The fourteenth law is that those things which cannot be enjoyed
in common, nor divided, ought to be adjudged to the first possessor; and
in some cases to the first born, as acquired by lot.
The fifteenth law is that all men that mediate peace be allowed safe conduct.
The sixteenth law is that they that are at controversie, submit their Right to the judgement of an Arbitrator.
The seventeenth law is that no man is a fit Arbitrator in his own cause.
The eighteenth law is that no man should serve as a judge in a case if greater profit, or honour, or pleasure apparently ariseth [for him] out of the victory of one party, than of the other.
The nineteenth law is that in a disagreement of fact, the judge
should not give more weight to the testimony of one party than another,
and absent other evidence, should give credit to the testimony of other
witnesses.
Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition, disregarding the traditional association of virtue with happiness, and likewise re-defining "law" to remove any notion of the promotion of the common good. Hobbes has no use for Aristotle's
association of nature with human perfection, inverting Aristotle's use
of the word "nature." Hobbes posits a primitive, unconnected state of
nature in which men, having a "natural proclivity...to hurt each other"
also have "a Right to every thing, even to one anothers body";
and "nothing can be Unjust" in this "warre of every man against every
man" in which human life is "solitary, poore, nasty, brutish, and
short." Rejecting Cicero's view that people join in society primarily through "a certain social spirit which nature has implanted in man,"
Hobbes declares that men join in society simply for the purpose of
"getting themselves out from that miserable condition of Warre, which is
necessarily consequent...to the naturall Passions of men, when there is
no visible Power to keep them in awe."
As part of his campaign against the classical idea of natural human
sociability, Hobbes inverts that fundamental natural legal maxim, the
Golden Rule. Hobbes's version is "Do not that to another, which thou wouldst not have done to thy selfe."
Cumberland's rebuttal of Hobbes
The English cleric Richard Cumberland
wrote a lengthy and influential attack on Hobbes's depiction of
individual self-interest as the essential feature of human motivation.
Historian Knud Haakonssen has noted that in the eighteenth century,
Cumberland was commonly placed alongside Alberico Gentili, Hugo Grotius and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law." The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by Cumberland."
Historian Jon Parkin likewise describes Cumberland's work as "one of
the most important works of ethical and political theory of the
seventeenth century." Parkin observes that much of Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero,
as "Cumberland deliberately cast his engagement with Hobbes in the
mould of Cicero's debate between the Stoics, who believed that nature
could provide an objective morality, and Epicureans, who argued that morality was human, conventional and self-interested."
In doing so, Cumberland de-emphasized the overlay of Christian dogma
(in particular, the doctrine of "original sin" and the corresponding
presumption that humans are incapable of "perfecting" themselves without
divine intervention) that had accreted to natural law in the Middle
Ages.
By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals." He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man;
and I do it upon the Authority of Cicero." Cumberland argues that the
mature development ("perfection") of human nature involves the
individual human willing and acting for the common good.
For Cumberland, human interdependence precludes Hobbes's natural right
of each individual to wage war against all the rest for personal
survival. However, Haakonssen warns against reading Cumberland as a
proponent of "enlightened self-interest."
Rather, the "proper moral love of humanity" is "a disinterested love of
God through love of humanity in ourselves as well as others."
Cumberland concludes that actions "principally conducive to our
Happiness" are those that promote "the Honour and Glory of God" and also
"Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness."
He cites "reason" as the authority for his conclusion that happiness
consists in "the most extensive Benevolence," but he also mentions as
"Essential Ingredients of Happiness" the "Benevolent Affections,"
meaning "Love and Benevolence towards others," as well as "that Joy,
which arises from their Happiness."
Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two.
Sir Alberico Gentili and Hugo Grotius based their philosophies of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent
being cannot change or abrogate" natural law, which "would maintain its
objective validity even if we should assume the impossible, that there
is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argumentetiamsi daremus (non esse Deum),
that made natural law no longer dependent on theology. However, German
church-historians Ernst Wolf and M. Elze disagreed and claimed that
Grotius' concept of natural law did have a theological basis. In Grotius' view, the Old Testament contained moral precepts (e.g. the Decalogue) which Christ
confirmed and therefore were still valid. Moreover, they were useful in
explaining the content of natural law. Both biblical revelation and
natural law originated in God and could therefore not contradict each
other.
In a similar way, Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of government and international law.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes'
radical reinterpretation, though the effect of Locke's understanding is
usually phrased in terms of a revision of Hobbes upon Hobbesian contractarian
grounds. Locke turned Hobbes' prescription around, saying that if the
ruler went against natural law and failed to protect "life, liberty, and
property," people could justifiably overthrow the existing state and
create a new one.
While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions." To Locke, the content of natural law was identical with biblical ethics as laid down especially in the Decalogue, Christ's teaching and exemplary life, and St. Paul's admonitions. Locke derived the concept of basic human equality, including the equality of the sexes ("Adam and Eve"), from Genesis 1, 26–28, the starting-point of the theological doctrine of Imago Dei.[106] One of the consequences is that as all humans are created equally free, governments need the consent of the governed. Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Lockean idea that governments need the consent of the governed
was also fundamental to the Declaration of Independence, as the
American Revolutionaries used it as justification for their separation
from the British crown.
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. Libertarian theorist Murray Rothbard
argues that "the very existence of a natural law discoverable by reason
is a potentially powerful threat to the status quo and a standing
reproach to the reign of blindly traditional custom or the arbitrary
will of the State apparatus." Ludwig von Mises
states that he relaid the general sociological and economic foundations
of the liberal doctrine upon utilitarianism, rather than natural law,
but R. A. Gonce argues that "the reality of the argument constituting
his system overwhelms his denial."
Murray Rothbard, however, says that Gonce makes a lot of errors and
distortions in the analysis of Mises's works, including making
confusions about the term which Mises uses to refer to scientific laws,
"laws of nature", saying it characterizes Mises as a natural law
philosopher. David Gordon
notes, "When most people speak of natural law, what they have in mind
is the contention that morality can be derived from human nature. If
human beings are rational animals of such-and-such a sort, then the
moral virtues are...(filling in the blanks is the difficult part)."
Economist and philosopher F. A. Hayek
said that, originally, "the term 'natural' was used to describe an
orderliness or regularity that was not the product of deliberate human
will. Together with 'organism' it was one of the two terms generally
understood to refer to the spontaneously grown in contrast to the
invented or designed. Its use in this sense had been inherited from the
stoic philosophy, had been revived in the twelfth century, and it was
finally under its flag that the late Spanish Schoolmen developed the
foundations of the genesis and functioning of spontaneously formed
social institutions." The idea that 'natural' was "the product of designing reason" is a product of a seventeenth century rationalist reinterpretation of the law of nature. Luis Molina,
for example, when referred to the 'natural' price, explained that it is
"so called because 'it results from the thing itself without regard to
laws and decrees, but is dependent on many circumstances which alter it,
such as the sentiments of men, their estimation of different uses,
often even in consequence of whims and pleasures". And even John Locke,
when talking about the foundations of natural law and explaining what
he thought when citing "reason", said: "By reason, however, I do not
think is meant here that faculty of the understanding which forms traint
of thought and deduces proofs, but certain definite principles of
action from which spring all virtues and whatever is necessary for the
proper moulding of morals."
This anti-rationalist approach to human affairs, for Hayek, was the same which guided Scottish enlightenment thinkers, such as Adam Smith, David Hume and Adam Ferguson, to make their case for liberty.
For them, no one can have the knowledge necessary to plan society, and
this "natural" or "spontaneous" order of society shows how it can
efficiently "plan" bottom-up. Also, the idea that law is just a product of deliberate design, denied by natural law and linked to legal positivism, can easily generate totalitarianism:
"If law is wholly the product of deliberate design, whatever the
designer decrees to be law is just by definition and unjust law becomes a
contradiction in terms. The will of the duly authorized legislator is
then wholly unfettered and guided solely by his concrete interests".
This idea is wrong because law cannot be just a product of "reason":
"no system of articulated law can be applied except within a framework
of generally recognized but often unarticulated rules of justice".
However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse
(1601): "The sign of a natural law must be the universal respect in
which it is held, for if there was anything that nature had truly
commanded us to do, we would undoubtedly obey it universally: not only
would every nation respect it, but every individual. Instead there is
nothing in the world that is not subject to contradiction and dispute,
nothing that is not rejected, not just by one nation, but by many;
equally, there is nothing that is strange and (in the opinion of many)
unnatural that is not approved in many countries, and authorized by
their customs."
Islamic natural law
Abū Rayhān al-Bīrūnī, an Islamic scholar and polymathscientist, understood natural law as the survival of the fittest. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology. Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.
The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi
stated that the human mind could know of the existence of God and the
major forms of 'good' and 'evil' without the help of revelation.
Al-Maturidi gives the example of stealing, which is known to be evil by
reason alone due to people's working hard for their property. Killing,
fornication, and drinking alcohol were all 'evils' the human mind could
know of according to al-Maturidi. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas.
However, whereas natural law deems good what is self-evidently good,
according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali
abstracted these "basic goods" from the legal precepts in the Qur'an
and Sunnah: they are religion, life, reason, lineage and property. Some
add also "honour". Ibn Qayyim Al-Jawziyya also posited that human reason could discern between 'great sins' and good deeds.
Brehon law
Early
Irish law, An Senchus Mor (The Great Tradition) mentions in a number of
places recht aicned or natural law. This is a concept predating
European legal theory, and reflects a type of law that is universal and
may be determined by reason and observation of natural action. Neil
McLeod identifies concepts that law must accord with: fír (truth) and
dliged (right or entitlement). These two terms occur frequently, though
Irish law never strictly defines them. Similarly, the term córus (law in
accordance with proper order) occurs in some places, and even in the
titles of certain texts. These were two very real concepts to the
jurists and the value of a given judgment with respect to them was
apparently ascertainable. McLeod has also suggested that most of the
specific laws mentioned have passed the test of time and thus their
truth has been confirmed, while other provisions are justified in other
ways because they are younger and have not been tested over time
The laws were written in the oldest dialect of the Irish language,
called Bérla Féini [Bairla-faina], which even at the time was so
difficult that persons about to become brehons had to be specially
instructed in it, the length of time from beginning to becoming a
learned Brehon was usually 20 years. Although under the law any third
person could fulfill the duty if both parties agreed, and both were
sane.
It has been included in an Ethno-Celtic breakaway subculture, as it has
religious undertones and freedom of religious expression allows it to
once again be used as a valid system in Western Europe.
The Catholic Church holds the view of natural law introduced by Albertus Magnus and elaborated by Thomas Aquinas, particularly in his Summa Theologiae, and often as filtered through the School of Salamanca. This view is also shared by some Protestants, and was delineated by Anglican writer C. S. Lewis in his works Mere Christianity and The Abolition of Man.
The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience. There are many manifestations of the good that we can pursue. Some, like procreation,
are common to other animals, while others, like the pursuit of truth,
are inclinations peculiar to the capacities of human beings.
To know what is right, one must use one's reason and apply it to
Thomas Aquinas' precepts. This reason is believed to be embodied, in its
most abstract form, in the concept of a primary precept: "Good is to be
sought, evil avoided." St. Thomas explains that:
there belongs to the natural law, first, certain most general precepts, that are known to all;
and secondly, certain secondary and more detailed precepts, which are, as it were,
conclusions following closely from first principles. As to those general principles, the
natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted
out in the case of a particular action, insofar as reason is hindered from applying the
general principle to a particular point of practice, on account of concupiscence or some
other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the
natural law can be blotted out from the human heart, either by evil persuasions, just as in
speculative matters errors occur in respect of necessary conclusions; or by vicious customs
and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle
states (Rm. i), were not esteemed sinful.
However, while the primary and immediate precepts cannot be "blotted
out", the secondary precepts can be. Therefore, for a deontological
ethical theory they are open to a surprisingly large amount of
interpretation and flexibility. Any rule that helps humanity to live up
to the primary or subsidiary precepts can be a secondary precept, for
example:
Drunkenness is wrong because it injures one's health, and worse,
destroys one's ability to reason, which is fundamental to humans as
rational animals (i.e., does not support self-preservation).
Theft is wrong because it destroys social relations, and humans are
by nature social animals (i.e., does not support the subsidiary precept
of living in society).
Natural moral law is concerned with both exterior and interior acts,
also known as action and motive. Simply doing the right thing is not
enough; to be truly moral one's motive must be right as well. For
example, helping an old lady across the road (good exterior act) to
impress someone (bad interior act) is wrong. However, good intentions
don't always lead to good actions. The motive must coincide with the
cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:
According to Aquinas, to lack any of these virtues is to lack the
ability to make a moral choice. For example, consider a person who
possesses the virtues of justice, prudence, and fortitude, yet lacks
temperance. Due to their lack of self-control and desire for pleasure,
despite their good intentions, they will find themself swaying from the
moral path.
Contemporary jurisprudence
In jurisprudence, natural law can refer to the several doctrines:
That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights;
That they can emerge by the natural process of resolving conflicts,
as embodied by the evolutionary process of the common law; or
That the meaning of law is such that its content cannot be
determined except by reference to moral principles. These meanings can
either oppose or complement each other, although they share the common
trait that they rely on inherence as opposed to design in finding just
laws.
Whereas legal positivism
would say that a law can be unjust without it being any less a law, a
natural law jurisprudence would say that there is something legally
deficient about an unjust norm. Legal interpretivism, famously defended in the English-speaking world by Ronald Dworkin, claims to have a position different from both natural law and positivism.
The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England, which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity,
but was not itself identical with the laws of England. Nonetheless, the
implication of natural law in the common law tradition has meant that
the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.
Natural law jurisprudence is currently undergoing a period of
reformulation (as is legal positivism). The most prominent contemporary
natural law jurist, Australian John Finnis, is based in Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle and Brazilian Emídio Brasileiro. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law.
"New Natural Law" as it is sometimes called, originated with
Grisez. It focuses on "basic human goods", such as human life,
knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.
The tensions between the natural law and the positive law have played, and continue to play a key role in the development of international law.
.png)
_1352_150cm,_treviso,_ex_convento_di_san_niccol%C3%B2,_sala_del_capitolo.jpg)
